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By JAMES A. WOODBURN 



The American Republic and Its Government 

An Analysis of the Government of the United States, 
with a Consideration of its Fundamental Principles 
and of its Relations to the States and Territories. 8°. 

Political Parties and Party Problems in the United 
States 

A Sketch of American Party History and of the De- 
velopment and Operations of Party Machinery, to- 
gether with a Consideration of Certain Party Problems 
in their Relations to Political Morality. 8°. 

American Orations 

Edited by Alexander Johnston. Re-edited, with new 
Material and Historical Notes, by J. A. Woodburn. 
Four volumes. Sold separately. 12°. Each, $1.25. 

G. P. PUTNAM'S SONS 

NEW YORK LONDON 



AMERICAN POLITICS 



THE AMERICAN REPUBLIC 
AND ITS GOVERNMENT 



AN ANALYSIS OF THE GOVERNMENT OF THE UNITED STATES 

WITH A CONSIDERATION OF ITS FUNDAMENTAL 

PRINCIPLES AND OF ITS RELATIONS TO 

THE STATES AND TERRITORIES 



BY 



JAMES ALBERT WOODBURN 

PROFESSOR OF AMERICAN HISTORY AND POLITICS 
INDIANA UNIVERSITY 



G. P. PUTNAM'S SONS 
NEW YORK AND LONDON 

Gbe fmfcfcerbocfeer pxces 

1903 



Copyright, 1903 

BY 

JAMES ALBERT WOODBURN 



Published, March, 1903 
Reprinted, September, 1903 

1 "I 9 a (f 



• ■ » • • • « "• • 4 « * > » 1 « I 



£l- L /7< 



TTbe Imfcfeerbocfcer press, "Hew Borfe 



PREFACE 

IT is the purpose of this book and of its companion vol- 
ume, Political Parties and Party Problems in the United 
States, to attempt an addition to the works designed for the 
encouragement of the study of American politics. This 
volume has to do with the original principles of the Re- 
public as announced by the Fathers in the struggle for 
Independence, and with the principal institutions and 
organs of government created by the Constitution. 

The greater part of this field has been traversed by 
many writers, and its principal subjects are treated of by 
all text-books on Civil Government. Most of the text- 
books in Civics, however, have been, at least until very 
recently, class-room hand-books dealing very briefly and 
disconnectedly with a large variety of topics, and de- 
signed for young students in the first year of the high 
school, or below. Mr. Bryce's great work, The American 
Commonwealth, has done much during the last decade for 
the promotion of political education among American 
students and readers; and in our institutions of higher 
learning, where elective courses of considerable length are 
offered in political science and the study of the American 
Government, it has been indispensable, as it will prob- 
ably continue to be in its special field for a generation to 
come. I wish to acknowledge my great indebtedness to 
Mr. Bryce for the constant use of his work in the class- 
room as well as in the preparation of this work ; and if this 
volume should do anything toward promoting a larger 



iv Preface 

use of The American Commonwealth and books of its 
kind — there are none of its rank — among high schools, 
academies, and colleges, it will not have been published 
in vain. 

With a view to this larger study of American politics, 
and as leading up to it, it seems to me necessary to recog- 
nize that between the field for the elementary text-books 
in Civics and that of the advanced classes in the universi- 
ties that call for special and extensive study in works like 
that of Mr. Bryce, there is an intermediate field. My 
effort has been to fill this gap, to provide an intermediate 
book for advanced courses in high schools or for elemen- 
tary courses in the colleges. It is believed that in this 
field of Civics there are classes of students well prepared 
for more advanced work than is ordinarily pursued in 
high schools, whose interest will be more easily and 
effectively aroused and sustained by a somewhat elaborate 
discussion of the more important subjects in the study 
of the American Government and its principles. For 
this purpose it seems better to present more extensive 
treatment of fewer subjects than to reconsider the great 
variety of miscellaneous topics usually contained in the 
books on elementary Civics. 

It is one of the first purposes of public education in 
America to induce the youth of the land to understand the 
Constitution of their country, the principles that underlie 
it, how it has grown, the perils that have threatened it, 
the wisdom and courage that have sustained it and made 
it great. This is to be learned chiefly from our country's 
history. It is a field of reading and study that should be 
inviting to all American citizens. It is my hope that this 
book may in some degree, for the sake of a higher citi- 
zenship, promote the study of history, politics, and the 
problems of government. 

J. A. W. 

Indiana University, Bloomington, Indiana, 
January 20, 1903. 



CONTENTS 



CHAPTER I 

PAGE 

The Principles of the Fathers i 



CHAPTER II 
The Federal Nation 47 

CHAPTER III 
The Presidency 94 

CHAPTER IV 
The Senate 196 

CHAPTER V 
The House of Representatives .... 246 

CHAPTER VI 

The Judiciary 317 

CHAPTER VII 
The States and their Government . . . 342 

CHAPTER VIII 

The Territories and their Government . . 362 
Index 399 



V 



THE AMERICAN REPUBLIC 



CHAPTER I 
THE PRINCIPLES OF THE FATHERS 

THE great text-book for the study of politics is history. 
He who would understand the principles of our 
Government and the institutions that have been built 
upon them must look to the history out of which these 
principles and institutions have emerged. Without a 
knowledge of the past we cannot understand the present. 
In 1763, after a half-century of conflict, the English 
had triumphed over the French in America. Under the 
treaties of that year closing the Seven Years' 
War, the French retired from the North American 
American continent, and the English rule was Revolutlon « 
established in Canada and in the territory east of the 
Mississippi. To meet the increased burden of an in- 
creased debt and of enlarged possessions, the English 
Ministry under George III. resolved upon three measures 
which Mr. Lecky, the great English historian, has said 
produced the American Revolution : 

1. The enforcement of the old trade laws. 

2. The quartering permanently in America of a portion 
of the British army. 

3. The raising by Parliamentary taxation in America of 
a part of the money necessary for the army's support. 



2 The American Republic 

The old trade laws, which had been passed chiefly in 
the interest of the English trading companies, were ob- 
~^ ^ ,• u noxious and vexatious to the Colonies, and 

The English * 

commercial they had been allowed to fall into disuse. By 
code violates ^ e ^ aws ^ Q Colonies were not allowed to 

Sound 

Principles of establish manufactures for themselves, nor to 
carry on a profitable trade with other coun- 
tries. The English commercial code thus violated the 
fundamental principle of just government, that laws 
should be in the interest of the people who are bound to 
obey them. The attempt to revive and strictly to en- 
force these obsolete laws thus became a contributing 
cause of the American Revolution : and in so far as the 
Americans resisted these laws, they did so as claiming a 
right to freer trade and freer industry ; in short, as assert- 
ing their right to regulate their manufactures and com- 
merce in their own interest. 

The dread of a standing army had been a powerful in- 
fluence with the common people of England ever since 
opposition to their struggle against the tyranny of the royal 
a standing power in the days of the Commons' revolt 
against the Stuart kings, 1642- 1649. Espe- 
cially was this feeling strong among those English Puri- 
tans and Cavaliers who "in an unconquerable spirit had 
effected settlements in the distant and inhospitable wilds 
of America. " They held with a stubborn and undaunted 
spirit that no army should be quartered upon them except 
by the consent of their own legislatures. Every State 
or colony — that is, every organized political community 
like Massachusetts, Virginia, or Rhode Island, they de- 
clared, "must judge for itself the number of armed men 
which they may safely trust among them, of whom they 
are to consist, and under what restrictions they are to be 
laid." ' Reliance on their own militia and opposition to 
a standing army larger than was necessary to preserve 

' Jefferson's Summary View of the Rights of the Colonies. 



The Principles of the Fathers 3 

the peace involved one of the early principles of the 
Republic. 

But it was especially the controversy raised by the new 
Imperial policy of taxation that led to the dismemberment 
of the British Empire and to the independence of America. 
In the long discussion between Great Britain and the Col- 
onies touching Imperial power and colonial rights, from 
the passage of the Stamp Act in 1765, till the Declaration 
of Independence proclaimed a new nation to the world, the 
colonists stood out for the following rights and principles : 

1. The right of constitutional government. — Great Brit- 
ain claimed, while the colonists denied, that Parliament 
could exercise an unlimited power over them, 

*t 1 • 1 1 -ii 1 >> <-T>i The Right of 

to bind them m all cases whatsoever. The constitu- 
colonists had no voice, and from the nature of tionai 

, , , - . . Government. 

the case could nave none, in the body proposing 
so to govern them. The great remedial measures guar- 
anteeing the ancient rights of subjects, such as the Great 
Charter, the Habeas Corpus, the Bill of Rights, — that is, 
the law, customs, precedents, and constitutional statutes 
which made up the British Constitution, — were in full 
force in the Colonies. By this Constitution Parliament 
must be bound. The colonists held that their charters 
also conferred and defined certain constitutional rights 
and limited the powers of government over them. Eng- 
lish law and liberty, they claimed, knew no such thing as 
absolute, unlimited power, without constitutional limita- 
tions and restraints. The colonists contended not for 
new rights but for old ones, not for innovations or a new 
constitution, but for their old charters and the old Consti- 
tution with its privileges and guarantees. They had lost 
none of their rights by migration. Whatever were the 
constitutional rights of Englishmen at home were the con- 
stitutional rights of Englishmen in the Colonies. With 
our fathers, wherever they went throughout the world, 
their Constitution and their law followed their flag. 



4 The American Republic 

** All we have of freedom, all we used or know, 
This our fathers bought for us, long and long ago; 
Ancient Right unnoticed as the breath we draw, 
Leave to live by no man's leave underneath the law." ' 

2. The right of local self-government . — To the colonists 
this was a necessary corollary to the rights of constitu- 
„*. r,. ^ r tional government. The foundation of English 

The Right of & *> 

Local self- liberty and of all free government is the right 
Government. Q £ a p CO pi e j- participate in their legislative 
council. This meant, in 1776, the free and exclusive 
power of legislation in the colonial assemblies, — in all 
cases of taxation and internal policy. 2 The colonists 
held that, while matters of Imperial concern, and espe- 
cially the commercial system, should remain under the 
control of the Imperial Parliament, each Colony should 
regulate for itself its own local affairs ; that the colonial 
assemblies were complete and independent legislatures 
for all matters of internal concern. Each Colony was 
"a people." In the exercise of this right of local self- 
government, 

14 the Colonial legislatures with the entire assent of the Home 
Government assumed the right of modifying almost every por- 
tion of the common and of the statute law, with a view to their 
special circumstances. It became recognized that the Colonies 
might legislate for themselves as they pleased, provided they left 
untouched their allegiance to the Crown and acts of the Eng- 
lish Parliament." 3 

In internal matters they claimed therefore not to be 
under the jurisdiction of the British Parliament, and that 
they did not hold their political existence at the will of 
that body; that the rights — original and chartered and 

1 Kipling, The King. 

8 Resolution of the Continental Congress, October 24, 1774. 

3 Lecky, American Revolution, p. 39. 



The Principles of the Fathers 5 

guaranteed — of one part of the Empire should not be 
sacrificed to the desire and power of another part, and 
that one legislature, like that of Great Britain, should not 
be allowed to infringe upon the rights and liberties of 
another legislature, like that of Virginia or of New York. 
Therefore, it was held, when Parliament attempted to 
suspend the legislature of New York for refusing com- 
pliance with the Mutiny Act of 1765, quartering troops 
in America, that "one free and independent legislature 
had taken upon itself to suspend the power of another, 
free and independent as itself." 1 It was the right of 
every State to govern itself within its own local rights 
and limits. The colonists declared the taxing and co- 
ercive acts of Parliament void, because by the principles 
of the English Constitution and by colonial charters 
Parliament had no right to exercise such authority within 
these Colonies. For these reasons the suspension of 
their legislatures was held to be an act of usurpation and 
tyranny, and in case of continued suspension the powers 
of these bodies reverted to the people ; and the colonists 
believed that to make their judges and governors inde- 
pendent of their assemblies, and dependent merely on the 
royal will and favor for their tenures and their salaries, 
was an interference with the right of self-government. 
States' rights, as against Imperial or central authority, in 
all matters of domestic concern, was an original and primi- 
tive principle in the history of the United States. 

3. The right of trial by a jury of the vicinage. — The 
courts of admiralty had been empowered to try violations 
of the Stamp Act and other acts enforcing the The R . ht 
trade laws. In these courts a jury trial was Trial by 
denied. And, also, as a means of meeting Jury ' 

colonial resistance, an old law of the time of Henry VIII. 
was revived which empowered a colonial governor to bring 
to England for trial persons accused of treason outside of 

1 Jefferson's Summary View of the Rights of America. 



6 The American Republic 

England, "transporting them beyond seas to be tried for 
pretended offenses." ' 

" By this act," says Burke, " almost all that is substantial 
and beneficial in a trial by jury is taken away from a subject in 
the Colonies. To try a man under that act is, in effect, to 
condemn him unheard. A person is brought hither in the 
dungeon of a ship's hold; thence he is vomited into a dun- 
geon on land, loaded with irons, unfurnished with money, un- 
supported by friends, three thousand miles from all means of 
calling upon or confronting evidence, where no one local cir- 
cumstance that tends to detect perjury can possibly be judged 
of, — such a person may be executed according to form, but he 
can never be tried according to justice." a 

To this violation of one of the dearest rights of English- 
men, the colonists set themselves in determined resistance. 
4. The right of free assembly and the right of petition. 
— The right of petition was repeatedly exercised without 
The Rights restraint, though the colonial petitions were as 
of Free repeatedly slighted and disregarded. The right 

and of of assembly and free discussion, ' ' a right f ormid- 

Petition. a kj e to tyrants only," was threatened by the 
Massachusetts Act of 1774, by which the charter of that 
Colony was radically changed, and the right of free dis- 
cussion in the old Town meeting was seriously abridged. 
Hereafter none but election meetings were to be held 
and no subject was to be discussed except by permission 
of the royal governor. Such an act brought consterna- 
tion to every Colony in America. It was such coercive 
laws that brought the colonists into union to resist what 
they considered a series of unconstitutional measures 
that were annihilating their chartered liberties, abolishing 
their most valuable laws, and altering fundamentally the 
forms of their government. 

1 Declaration of Independence. 9 Letter to the Sheriffs of Bristol. 



The Principles of the Fathers 7 

5. The right of self-taxation : "No taxation without 
representation." — The Stamp Act of 1765 was an attempt 
to impose by parliamentary power a direct The Right of 
domestic tax upon the Colonies. The Imperial Taxation^ 
Government had previously exacted some pay- " No Taxa- 
ments at the customs houses upon the trade of W R e pTe- 
the Colonies. But this was not done for pur- sentation." 
poses of revenue. It was done to regulate the trade of 
the Empire, to enable the British trade to surpass that of 
the Dutch or the Spanish or the French ; and, as "an ins- 
trument of empire," since it was taxation for commerce 
and not for revenue, the colonists had been willing to 
bear this burden for the sake of the common Imperial 
interests. The colonists called this an external tax. Such 
measures were looked upon as trade regulations External 
rather than as measures of taxation. When it Taxation, 
was desired that the Colonies should contribute to the ex- 
traordinary expenses of the Empire in money or troops 
for a foreign war, requisitions were applied for. That 
is, the king, through the person of his royal governor 
in the Colony, asked for the supplies, and the Colony 
through its representative assembly gave and granted 
the substance of the colonists. This was the 

77 r • 1 • 1 /-> The Consti- 

old system of securing supplies to the Crown tutionai 
to which Burke pleaded that the Parliament system of 

111 1 r t • i 11 1 Requisitions. 

should return, and from which, as he thought, 
it ought never to have departed. This was the old prac- 
tice on which Pitt based his constitutional theory that 
taxation was no part of the legislative power ; that taxes 
were a free gift of the people to be voted, or refused, by 
the representatives of the people who were expected to 
pay the tax. This was the old custom — which with Eng- 
lishmen was the law — that was sustained by so many 
precedents in English history. On four memorable 
occasions, by four great and notable statutes, the 
English people had recognized the American contention 



8 The American Republic 

that there should be no taxation without representa- 
tion: 

In 1215, by Magna Charta, it was agreed as a principle 
of the Constitution that no aid (tax) should be imposed 
English except by the common council of the nation, 
Precedents an d a ll estates, or classes, that were to pay 
American " were to be summoned, in the persons of their 
contention, representatives, to the national council. 

In 1297, by a statute concerning taxation without consent? 
the principle of no taxation without representation was 
again recognized and confirmed. 

In 1628, in the celebrated Petition of Right, this statute 
was quoted and the Charter was again confirmed, and it 
was again declared that no "aid should be levied, except 
by the good will and assent of the national representa- 
tives. " 

Again, by the glorious Revolution of 1688, this principle 
was reaffirmed on one of the most solemn occasions of 
the nation's history. 

It was clearly the law and the usage that taxation with- 
out consent was illegal; that taxes were to be imposed 
only by the representatives of those who were required to 
pay them. By struggle after struggle this right to be 
consulted as to when and how much they should pay into 
the king's treasury had been wrought out by the English 
people. It was their experience that this was the safe, 
constitutional mode of taxation. This right was again 
and again encroached upon and denied by the royal 
power, but it was as often recovered and vindicated. 
And each time the practice was reasserted it became more 
firmly embedded as a principle in the national conduct 
and Constitution. In speaking of the Stamp Act, with 
this experience of the nation in view, Mr. Lecky says : 

The measure did unquestionably infringe upon a principle 
1 De Tallagio non Concedendo, 1297, 



The Principles of the Fathers 9 

which the English race both at home and abroad have always 
regarded with a peculiar jealousy. The doctrine that taxa- 
tion and representation are in free nations insepa- 

. . , , . Taxation and 

rably connected, that constitutional government is R ep resenta- 
closely connected with the rights of property, and tion Go 

that no people can be legitimately taxed except by ° ge 
themselves or their representatives lay at the very root of the 
English conception of political liberty. ' ' 1 

In opposition to the new taxing policy of Parliament in- 
volved in the Stamp Act, the colonists expressed this old 
English principle substantially as follows : 

' ' That it was essential to the freedom of a people, and the 
undoubted right of Englishmen, that no taxes be imposed on 
them but with their own consent, given personally 

° r J Statement of 

or by their representatives. the stamp 

" That the Colonies could not be represented in Act Congress, 
Parliament and that their only representatives were 
persons chosen therein by themselves, and that no taxes ever 
have been or can be imposed on them but by their representa- 
tive legislatures. 

14 That all supplies to the Crown being free gifts of the peo- 
ple, it is unreasonable and inconsistent with the principles and 
spirit of the English Constitution for the people of Great 
Britain to grant the property of the colonists." 2 

This is not to be thought of as a theory which, once 
thought out a priori by some great thinker or statesman, 
had then been promulgated for the nation and for the 
future. Our fathers did not deal with theories in that 
sense. But the maxim, "No taxation without representa- 
tion,' ' is to be looked upon as an attempt to deduce from 
their history and to formulate what had been a long- 
standing practice. // was a description of what had been, 
so far as they and their estates were concerned. It did 

1 American Revolution, p. 75. 

2 Resolutions of the Stamp Act Congress, 1765. 



io The American Republic 

not relate to the rights of individuals or of minorities. 
It was not intended to assert that "a man's property is 
absolutely his own, and that what he has acquired cannot 
be taken from him without his consent " ; although such 
language was used by the advocates of the colonial cause 
both in England and America. 1 All men wish not to be 
taxed, and very few men give their consent to all their 
taxes. If no tax could be collected except what every 
man willingly consented to, society would be reduced to 
anarchy. Nor was it intended to assert by the phrase, 
"No taxation without representation," that all persons 
who paid taxes should be represented in the legislature 
that imposes the tax. The doctrine was formulated to 
vindicate the right of one class or estate in the realm 
against another, or to vindicate the right of one body 
politic against another claiming superior authority. How- 
ever, it may be fairly claimed that the logical inference is 
that equal rights in taxation of individuals within a state 
should prevail. For, when we say that taxation and 
representation should go together, we clearly assert that 
all who pay taxes to the state should have a voice in 
determining their assessment and distribution. 

The controversy over these issues led to the Declara- 
tion of Independence, July 4, 1776. In this great docu- 
ment, which Buckle calls "that noble Declaration which 
ought to be hung up in the nursery of every king and 
blazoned on the porch of every royal palace, ' ' our Fathers 
announced their theory of government to the world. 
The memorable words in which they then announced 
their principles of government should be stored in the 
memory of every citizen of America : 

" When in the course of human events it becomes necessary 
for one people to dissolve the political bands that connect them 

1 Pitt on American Taxation. Samuel Adams ; Massachusetts Circular 
Letter, 1768. 



The Principles of the Fathers 1 1 

with another and to assume among the nations of the world 
that just and equal station to which the laws of nature and of 
nature's God entitle them, a decent regard to the opinion of 
mankind requires that they should make known the causes 
leading to the separation. We hold these truths to be self-evi- 
dent: That all men are created equal; that they are endowed 
by their Creator with certain inalienable rights, among which 
are life, liberty, and the pursuit of happiness; that to secure 
these rights governments are instituted among men deriving 
their just powers from the consent of the governed; that when- 
ever any form of government becomes destructive of these 
ends, it is the right of the people to alter or abolish it, and to 
institute a new government, laying its foundations in such prin- 
ciples and organizing its powers in such form as to them shall 
seem most likely to effect their safety and happiness." * 

This Declaration teacnes : 

1. That men have rights. Among these are life, 
liberty, and the pursuit of happiness. 

2. That governments are instituted for the benefit of 
the governed, — to secure and protect these rights of men. 

3. That these governments " derive their just powers 
from the consent of the governed. ' ' 

4. That whenever any government becomes destructive 
of these rights, it is the right of the people to overthrow 
it; and when the people have overthrown a perverted 
government, it is their right and duty to establish a new 
government on whatever principles and in whatever form 
will ensure the public safety and happiness. 

5. That, under law and government, and in the pro- 
tection of these rights, "all men are created equal." 

These principles were announced as self-evident, — as 
if they had only to be stated in order to be accepted. 
Yet, perhaps, no political platform of equal length in all 
human history has been the subject of greater contro- 
versy and dispute; and no statements have been more 

1 Preamble of the Declaration of Independence. 



12 The American Republic 

persistently misunderstood and misconstrued. Some, 
false to these principles, have sought to bring them into 
disrepute by a false and literal interpretation. Other's, 
lacking an intelligent conception of their meaning, have 
been too easily disposed to reject them as untenable. It 
is important that the children should know what the 
Fathers believed, and they should be ready, if need be, 
to defend those beliefs. In order to do this and to repel 
the constant attacks upon the famous Declaration of the 
Fathers and to expose the frequent perversions and re- 
pudiations of their principles, it is necessary fro know 
what our Fathers really believed. 

In approaching this subject it is important to bear in 
mind that in politics, in the practical business of govern- 



ing, there are no political policfe^ and # raograms suitable 
for universal application. A ^opositi'c*n . ift politics de- 
pends for its truth upon ttye sense jiwhich Tt is intended, 
or, often, on the circumytance at relation to which it 
applies. We may assert £h<ft a\epubric is the best form 
of government, or that manhood suffrage should prevail, 
that the majority should rule, and that self-government 
should be established among men. These things may be 
true for us and for many other peoples. Our fathers be- 
lieved that some of these things were true for them and 
for their children ; but no one has ever maintained, and 
the Fathers of this Republic should never be accused of 
maintaining, that these statements were universally true 
for all peoples, in all times, and under all circumstances. 
This is not to say that there are no political principles 
that are fixed and abiding, or that a nation's principles 
should depend upon its circumstances. Politics is a part 
of man's life and in man's life there are principles that 
are divine, that proceed from the very nature of God and 
man, and that are, therefore, absolute, eternal, and un- 
changeable. Times may change, and men may change 
with them, but principles do not change. In spirit the 



The Principles of the Fathers 13 

principles of our fathers abide, and they are the same to-day 
as when they were announced in I yj6. * ' The letter killeth, 
the spirit maketh alive. " It is not the form but the spirit 
of truth that is eternal. It is the political spirit that con- 
trolled the political lives of the Fathers that we must seek. 
This is quite consistent with the recognition of the fact 
that political doctrines are to be studied in relation to 
their times ; that political doctrines are relative ; political 
that in order to see whether they are true or false Doctrines 
it is necessary to see them in relation to the are 
doctrines that they oppose ; that the science of govern- 
ment, if it be not ' ' the science of circumstances, ' ' as Burke 
has defined it, is at least an historical science — The science 
that is, its premises have their foundations in ofQovem- 

1 ment is an 

experience. The political principles that our Historical 
fathers announced were not spun out of their science, 
heads ; they were not evolved from the inner conscious- 
ness of some philosopher shut up in a closet : but their 
principles came out of their lives, were evolved from their 
experience and from the circumstances in which they were 
placed. They must, therefore, be studied and fairly 
interpreted in relation to this experience and history. 
History teaches us how these principles came to be, and 
if we wish to know their meaning we must know them 
in their development and in their cause. It is only in 
this way that we can come to know the sense and spirit of 
a body of principles. To attempt to express one's princi- 
ples in a maxim and to offer this maxim as of universal 
application, is not a scientific or sensible process in govern- 
ment. To affirm a political proposition absolutely ; to 
assert positively, once for all, for illustration, that 
" governments derive their just powers from the consent 
of the governed," would be as unwise as to deny this 
absolutely. Not absolute maxims, but the principle 
underlying the maxim is what we should seek. 

Bearing these things in mind, we may come to the arti- 



i4 The American Republic 

cles of political faith which our fathers announced and not 
hesitate to accept them when truly and fairly interpreted. 

I. Men have rights. — It would be unprofitable here to 
go into a discussion of the theory of natural rights. Our 
Men have fathers thought very little of pure theory in 
Rights. politics and we should theorize as little as they. 

It is sufficient to ask, — What were the two opposing 
practices on this subject which confronted our fathers 
as the outcome of their historical experience? On what 
opposing policies did they base their doctrine? 

(i) One view insisted upon the absolute authority of the 
sovereign, declaring that no rights can exist in opposition 
Absolutism to the sovereign's will. 

vs. Rights of (2) The other insisted upon certain natural 
Man * rights of individuals which the sovereign can 

never legally infringe. 

For more than a century men had been in contention 
over these theories. The defenders and apologists of the 
royal power in England had taught that all men were 
born under the necessity of submitting to an absolute 
kingly government; that he that had the power had 
the right ; whether he came to his place by election, 
inheritance, usurpation, or any other way, the persons 
and estates of his people were subject to his will, 
Divine and none should oppose that will. To fight 

Kin htS a nd a g amst that will was to fight against God, 
Passive for all powers that be were ordained of God 

obedience. and the king wag Q Q tf s ano inted. James I. 

voiced the idea of kingly absolutism: "As it is atheism 
and blasphemy in a creature to dispute what the Deity 
may do, so it is presumption and sedition in a subject 
to dispute what a king may do." After the Revolution 
of 1688 the Church and all the royal party continued 
to teach that the king's right was divine, different not 
only in degree but in kind from every other power in the 
state ; that resistance to him was in all cases a sin. On 



The Principles of the Fathers 15 

the day that Algernon Sidney was executed, December 
7, 1683, a few moments before his head fell into the 
basket, he handed the sheriff a paper review- 
ing his case. The doctrine of tyranny stated vindicates 
above is in substance as Sidney stated it in his Principles of 
dying words. It was for opposing that doc- 
trine that Sidney sacrificed his life. What a legacy to our 
fathers was the memory of a martyr like Sidney ! In his 
life and death — and he was but a type of many — he 
exemplified the principles of this Republic. Many of 
our fathers in the Old World, like Sidney, gave up their 
lives, and many more gave up their homes, in opposition 
to these doctrines and practices of despotism. As is well 
known, the founders of these States were, for the most 
part, political and religious exiles who carried with them 
to the New World the spirit of resistance to tyranny and 
oppression. The Fathers of our Revolution were their 
children and they were deeply imbued with the opposing 
principles of liberty taught by Pym and Milton and Har- 
rington and Sidney and Locke. With them, the question 
of human rights was settled. Whoever would dispute 
about that, let him dispute. But for them and for their 
children, in the state which they were founding, they 
would declare that "whenever any prince, or Locke and 
legislature, or government should endeavor to theR, g htof 
take away or destroy the property of the people, and 

or to reduce them to slavery under arbitrary Resistance - 
power, the people were then absolved from any further 
obedience and are left to the common refuge which God hath 
provided for all men against force and violence. ' ' l 

From this it will be seen that our fathers knew their 
rights; and that they asserted the righteousness, and 
would dare the dangers, of revolution in order to maintain 
those rights. 

1 Locke, Treatise on Government, chapter on " The Dissolution of 
Government." 



1 6 The American Republic 

This, indeed, was nothing new in 1776. Our fathers 
were simply maintaining the old principles of civil liberty 
old which had been taught them in England, and 

English which, it was supposed, had triumphed finally 
principles. {n the English Revolution of 1688. 

2. Governments are for the benefit of the governed. — 

Little need be said on this proposition. It needs no 

proof. It comes as near to being self-evident 

Governments ...... .,-, 

are for the as any proposition in politics can come. Even 
Benefit of the ^h.e kings of earth, the absolute rulers who hold 
by an hereditary title and who still claim to rule 
by divine right, generally confess that they hold their 
office for the benefit of the nation, that they are bound 
to rule in such a way as to promote the welfare of the 
people governed. The Stuart kings of England acknow- 
ledged that they were bound to exercise their powers in 
such a way as to promote the common welfare. The dif- 
ference between these kings and their Puritan Parliaments 
was that the Stuarts proposed to be guided only by their 
own sense as to what the public welfare required. 

While this principle of government for the governed 
seems obvious to us, we must remember that the opposite 
principle was constantly being practised and insisted upon 
by rulers and emperors and kings. A large part of the 
history of the Roman Empire merely illustrates the prac- 
tice of looking upon government as an institution to be 
used for the benefit of the governors, — for the benefit of 
Rome and a governing class. Provinces were conquered 

thePrkJcipu that the y mi g nt be taxed and the taxes ex- 
of Govern- pended, not in the provinces for the benefit 
Benefit ofthe °f tne people who paid them, but that these 
Governed. revenues might be sent to Rome to be used 
there for. the benefit of a rich, luxurious, and imperial 
oligarchy. Spain acted upon the same principle. During 
her centuries of colonial misrule, from the time Colum- 
bus discovered America until she lost Cuba and the 



The Principles of the Fathers 1 7 

Philippines, Spain constantly exploited her colonies for her 
own benefit, taxing and oppressing and defrauding the col- 
onists for the benefit of Spaniards at home, for the enrich- 
ment of the rulers who had charge of the government in 
Spain. It is not to be wondered at that Rome was finally 
dismembered, and that Spain constantly suffered from re- 
bellions in her colonies and that she has now lost them all. 
It was so in our own Colonies. In proportion as Great 
Britain governed us in our own interest, promoting our 
trade and prosperity by wise and unselfish laws, there 
were loyalty and love for the mother country. But in 
proportion as the Colonies were exploited for British 
benefit, as our trade was restrained and manufactures 
suppressed to promote the interests of British trading 
companies at home, and as we were taxed to relieve 
Englishmen from taxation, — just in that proportion were 
there friction, resistance, disloyalty, and disunion. Our 
fathers, therefore, with this experience before them, an- 
nounced it as one of the great lessons of history, as one of 
the fundamental principles of the state, that governments 
should exist for the benefit of the governed. History 
had made this so evident that it seemed to them self- 
evident. No one can be more recreant to his Rulers are 
country than the American who would use a Trustees; 

. Public Office 

public office not to promote the public welfare, a Public 
but for the benefit of himself and his friends. Trust. 

It is one of the first fundamental principles of the Re- 
public that a public office is a public trust. 

But the Fathers announced more than this. 

3. Government by the consent of the governed. Our 
fathers asserted, not only that government should exist 
for the benefit of the governed, but that it 

1 1 1 • , 1 1 r 1 1 Government 

should exist by the consent of the governed ; it by the 

should be by the people as well as for the consent of 

lt ~ . the Governed. 

people. Governments derive their just powers 
from the consent of the governed." 



1 8 The American Republic 

This maxim has been the subject of so much mis- 
understanding and of so much controversy; its reckless 
use has led to so much confusion instead of enlighten- 
ment, that it becomes necessary to dwell at some length 
upon the meaning with which it is to be received. 

What did our fathers means by such a saying? How 
does government rest on consent? There are so many 
consent of instances where it appears that government 
the Governed res ts on force ; the maxim is seemingly so con- 

Seems Incon- , . . , 

sistent with trary to history, to our own national expen- 
the Accepted ence> an d t the accepted facts of our national 

Facts of our *. . ., , " , 

National life, that such a saying seems impossible of 
Life. belief. After we purchased Louisiana, in 

1803, we proceeded to govern the people of that Ter- 
ritory without their consent. We did the same with 
the inhabitants of Florida after 18 19, and of the Mex- 
ican cessions after 1848. The people of the District of 
Columbia and of all the Territories have no voice in 
determining their fundamental law or the form of their 
government. We prevented secession by war and 
crushed the rebellion by national authority against the 
consent of the Southern people. Many half-civilized 
tribes of Indians have been — and ought to have been — 
governed against their wills. More than half of the 
nation, the women and children, have no voice of con- 
sent in their own government. Other illustrations of ap- 
parent inconsistency with the principle of the consent of 
the governed might be given. Must we admit, then, that 
we are false to our principles and unwilling to live up to 
them? Or, must we abandon the doctrine of the " con- 
sent of the governed " as unsound and untenable? It is 
value of always immoral and fatally injurious to charac- 
poiiticai ter to profess one life and to live another. If 
onsistency. Qur p ro f ess j on k e not true, we must abandon 
it, openly and honestly. If it be true, we must be ready 
to explain our faith and adhere to it. 



The Principles of the Fathers 19 

Obviously the phrase the "consent of the governed" 
has been misunderstood and misapplied. In order to 
understand its true scope and significance it is well to 
recognize first what it does not mean. 

I. It does not mean that government derives its authority 
from a social compact. — Our fathers did not announce 
the social-contract theory of government. This 
theory teaches, in substance, that once, when £y consent 
men were in a state of nature, free from the does not Rest 
restraints, obligations, and benefits of govern- Theory of 
ment, they agreed together to surrender some a social 

--...... r , , Compact. 

of their liberties m return for the order, pro- 
tection, and benefits of government, and that out of this 
social contract, or covenant, or compact, government 
grew and derived its authority. This theory is unhistori- 
cal and unsound. No such "social contract " was ever 
made, and government does not derive its authority from 
such a source. The framers of the Declaration of Inde- 
pendence — men like Franklin, Sherman, Livingston, and 
John Adams — did not believe this theory, nor did they 
teach it to the world. Jefferson may have been influ- 
enced by it, and though some of his utterances seem 
based upon it, there is no evidence that he regarded 
"government by the consent of the governed" as 
resting upon the basis of the social contract. It is not in 
the sense of Rousseau's Social Contract that the consent 
of the governed is to be considered. Taken in that sense 
it would be an unprofitable subject of study. 1 

But there was a sense in which our fathers believed in 
the compact theory, or the doctrine of contract, as ap- 
plied to their government. They accepted it as opposed 
to the theory of the divine right of kings. Our fathers 

1 For further study of this subject see : Rousseau, Le Contrat Social ; A. 
Lawrence Lowell, Essays on Government ; Lyman Abbott, " The Rights 
of Man," The Outlook, 27th April, 1901 ; Giddings, Democracy and Em- 
pire ; John Morley's Essay on Rousseau. 



20 The American Republic 

were undoubtedly adherents of the doctrine that their 
kingly government existed by right of contract between 
the king and his people, and that they were not bound 
in passive, abject obedience to a divinely appointed king. 
Their kings ruled by agreement, not by indefeasible 
hereditary right. Their doctrine was sustained in phi- 
losophy by Milton, Locke, and Sidney, and later by 
Priestley and Price and Godwin. It was regarded as an 
exhaustive division of all theories of government that 
they came from divine right, paternal authority, or in 
compact. The first two were regarded as identical. 
So, as the alternative was divine right or compact, 
our fathers accepted the latter. In this sense the 
compact theory was nothing more than an attempt to 
frame a theoretical formula to justify revolt against op- 
pression and tyranny. 1 The Whig theory of the Eng- 
lish Revolution of 1688 — which was the theory of the 
American Colonies — was that the king had forfeited the 
crown by breaking the contract between the king and 
the people ; that the throne was thereby vacant, and the 
nation should elect ; that in determining the succession, 
the nation, through its representative legislature, should 
impose such conditions as would in future insure the 
country against misgovernment. In harmony with the 
Whig theory, the Commons solemnly resolved: "That 
King James II., having endeavored to subvert the Constitu- 
tion of the kingdom, by breaking the original contract 
between king and people, and having violated the funda- 
mental laws and withdrawn himself out of the kingdom, has 
abdicated the government and the throne is thereby vacant." 
The theory of Locke and Sidney had triumphed over 
that of Filmer. It was afterwards reasonably held that 
by this Revolution the English people had acquired three 
fundamental rights : 

1 Leslie Stephen's History of English Thought in the Eighteenth Century, 
vol. ii., pp. 136, 142. 



The Principles of the Fathers 21 

(1) To choose their own governors. 

(2) To cashier them for misconduct. 

(3) To frame a government for themselves. 1 
Though Burke laboriously denies that these rights are 

to be derived from the English Revolution of 1688, we 
may fairly claim that they are undeniably grounded in 
the American Revolution of 1776, and that the old Whig 
theory of contract is sound wherein it teaches that if the 
people are fundamentally injured by the subversion of 
their government, the people have the right to save or 
recover by resistance the constitution and the liberties to 
which they had an original title. 

II. It must also be clear that " consent of the governed''' 
does not mean that all people are capable of self-government, 
that all people should be allowed to make and ad- 
minister their OWn laWS. That WOuld be foolish the Governed 

and absurd. Does any one suppose that the does not 
J rr Mean Seif- 

hard-headed framers of the Declaration of In- Government 

dependence believed such a thing? It is foralls ° r n ^ 
obvious that children must be obedient to conditions 
authority, to be restrained and governed, often 
against their wills, by those who care for them and who 
are older and wiser than they. It is so with semi-civilized 
and savage tribes of men. They have no right to follow 
their own caprice ; to destroy their own lives ; to enslave 
one another; to lay waste, or leave waste, the land that 
God has given them ; to live without law and order, in 
recognition of no law except that "might makes right." 
If such a people have an inheritance of land and oppor- 
tunity, that inheritance will be taken away and given to 
another. Such is the law of nature and of nature's God, 
— the God in whom, above all, our fathers believed. It 
is clearly the right and duty of a people wiser and better 
and stronger than the ignorant and the uncivilized to 

1 Dr. Richard Price, " Discourse on the Love of Country," November 4, 
1789, cited by Burke in his Reflections on the French Revolution. 



22 The American Republic 

govern these and to direct them into law and order for 
their greater safety and security. The wiser and the 
stronger, it is true, must recognize the principle of re- 
sponsibility, that they are responsible for governing justly 
and in the interest of the governed, but the fact must also 
be recognized that the unfit, the imbecile, and the vicious 
have no right to govern, not even the right to govern them- 
selves. The criminal must be restrained and imprisoned 
by authority and righteous force. The idiot and the in- 
sane must be cared for by those who are benevolent and 
wise. In short, the incapable must be governed by the 
capable. Our fathers in their Declaration of Indepen- 
dence did not deny any of these plain propositions. 

III. In the third place, the " consent of the governed" does 
not mean that suffrage is an inherent right and that politi- 
cal power in the state should be conferred on all 
th ^Governed a ^ke. — The doctrine does not require that the 
does not state, under all conditions, should be placed in 
suffrage is an tne power of the mere numerical majority, 
inherent Nothing could be more inconsistent than this 
with both the principles and practices of the 
men of y j6. Our fathers never believed that suffrage was 
an inherent right. They uniformly treated it as a privi- 
lege to be conferred for fitness. Of the three million 
people in America in 1776, five hundred thou- 

Who re 111 

consented sand were negro slaves ; more than five hun- 
!f th ? . , dred thousand were women ; one million were 

Revolution ? ' 

minors ; several hundred thousand were In- 
dians. One third of the whites opposed the Revolution. 
There were property qualifications for suffrage, sufficient 
to prevent many more whites from participating in the 
government. It is certain that the slaves were not can- 
vassed, that the Indians were not consulted, that the 
women and children had no votes, and that the Tories 
were voted down. With all these conditions how small a 
proportion of the people of America consented to the Rev- 



The Principles of the Fathers 23 

olution and to the adoption of the Constitution ! Clearly, 
it was only an insignificant minority of a ruling race. 

It may be said by some that, while this was so, the 
Fathers announced a principle that was subsequently to 
modify and correct their own practice. This is true to a 
great extent, but it is still clear, both from their prin- 
ciples and their practice, that nothing was further from 
the meaning and intention of their declaration than that 
all men of whatever kind should be left free at all times to 
govern themselves or to control the political power of the 
state. Such an assertion would be too flagrantly incon- 
sistent with the conduct of the Fathers, and in all the 
history of our national life no attempt has ever been made 
to carry such an assertion into practical application. Nor 
does loyalty to the principles of the Declaration of Inde- 
pendence require it. The Fathers knew, as well Self _ 
as we, that self-government involves both liberty Government 

t . t • 1 1 -i r • Involves 

and capacity. It involves liberty from caprice Liberty and 
and passion and prejudice and criminality. It Capacity, 
involves capacity to know and to do what is best for all con- 
cerned, — for those who are in authority and for those who 
are under authority. No people have a right to self-govern- 
ment — to government by their consent — unless they can 
show a reasonable measure of liberty and capacity. 

There are many illustrations in our history that will 
help to make this clear and emphatic. After our Civil 
War, when the slaves of the South had been emancipated, 
these freedmen were given political power. The ballot 
was placed in their hands, while many of the intelligent 
white people of the South were disfranchised. The 
negroes were ignorant and helpless, debased and depraved 
by generations of slavery. The great mass of them could 
neither read nor write. Illiterate and unfit to rule, they 
were the ready dupes of unscrupulous adventurers and 
demagogues. The carpet-bag governments that were set 
up in the Southern States oppressed the intelligence and 



24 The American Republic 

property of the South in an unjust and riotous manner. 
In the name of the "consent of the governed," State 
governments were established founded on fraud or on 
external force ; they robbed the State treasuries, imposed 
exorbitant taxes, and made law and justice a mere mock- 
ery. "Government for the benefit of the governed" was 
entirely disregarded. Now, while the Declaration of In- 
dependence recognizes no line of race or color; while it 
teaches that all men should be free, and implies that all 
men who are fit, regardless of race or color, should be 
allowed to express their consent, or dissent, in govern- 
ment, it is still clearly in harmony with this 

Intelligence ... . ... ... 

and virtue declaration that the vicious and the ignorant 
may R R ® S1S ! and the incompetent should be displaced from 
the ignorant power, and that intelligence and capacity should 
vicious set U P g°°d government in place of the bad, 

which would have due regard to the welfare of 
the governed, which would be bound to administer jus- 
tice, protect life and property, and give equal rights to 
all men under the law. 

Our fathers denied the "divine right of the king to 
govern wrong." In denying this they did not assert the 
divine right of the numerical majority to govern wrong. 
They asserted rather, that when any government became 
destructive of their rights, when it became corrupt and 
tyrannical and oppressive, such a government should be 
overthrown and a good government organized in its stead, 
having regard to the safety and happiness of the people. 

" The government of the righteous father is for the benefit 
of his children, but it does not rest on the consent of the chil- 
Seif- dren; the government of the just teacher is for the 

Government benefit of his pupils, but it does not rest on the con- 
tne^oai^not sent °^ *^ s pupils ; the government of God is for the 
the starting- benefit of man, but it does not rest on the consent 
Point. Q £ man j t ought always to be the object of those 

who are responsible for government, whether of the family, the 



The Principles of the Fathers 25 

school, or the state, to make that government so evidently- 
disinterested, just, and beneficent that it shall win the consent 
of the governed, and so educative that it shall become even- 
tually a self-government. But self-government is the end to 
be reached, not the starting-point to be assumed." * 

It will be evident to the student of our politics that our 
fathers never intended to oppose these simple truths ; that 
their Declaration did not assert the capacity of all men 
for self-government, or that incapables had the right to 
govern. Their announcement, it is true, points towards 
self-government among all people as the ideal. It is, in- 
deed, the ideal in the home, in the school, in the state. 
The parent and the teacher and the ruler should in one 
sense strive to "make themselves useless." That is, they 
should so govern that the governed will become capa- 
ble of self-control and self-direction, and the forcible 
control of teacher and parent and ruler will be no longer 
needed. Self-government is the goal constantly to be 
striven for, and until it is attained the character and hap- 
piness of a people can never be secure. Our maxim 
clearly implies, even though it does not assert, that 

1 Dr. Lyman Abbott, The Outlook, February 3, 1900, For further 
illustration and discussion of this subject see the same article p. 244. 
The editor says : " In Santiago, Cuba, 1898, when the American Govern- 
ment took command, the deaths were seven hundred a week. This 
was due to a universal disregard of the simplest and most self-evident sani- 
tary laws. The people desired to live in disregard of these laws. When 
General Wood undertook to prescribe and enforce certain sanitary regulations 
he had to meet and overcome the passive resistance of the people, and would 
have had to resist and overcome their active resistance if they had dared to 
resist. Not with the consent of the governed, but, in spite of their opposi- 
tion, the deaths were reduced from seven hundred a week to thirty or forty 
a week by a beneficent government. In such a case which right takes pre- 
cedence, the right to life of the men and women and children killed before 
their time, or the right of an ignorant and incompetent people to determine 
what shall be the sanitary conditions of the city in which they live ? — that 
is, the right of the people to have their government administered for their 
benefit, or the right of the people to have it conform to their will ? Clearly 
the latter right must fall in with the former or it must fall away." 



26 The American Republic 

moral obligation rests upon every nation to educate the 
ignorant and the poor, and to extend full citizenship as 
fast and as far as the safety of society will permit. 1 

While, then, our fathers did not assert that the re- 
sponsibilities and privileges of self-government should be 
conferred upon all men regardless of fitness or condition, 
they did clearly imply that all men should have the op- 
portunity to become fit, and they held strongly to the 
optimistic faith that all men may become capable of self- 
government. 

' ' When men show themselves ripe for an increase of freedom , 
government must remove all restrictive bonds. And the statesman 
must make men ripe for increased freedom fry every possible means. 
By nothing is this ripeness and capacity for freedom so much pro- 
moted as by freedom itself. ' ' 2 

Turning from the negative aspects of this maxim, from 
a mere implication that it involves, we must seek to 
understand more clearly and fully its positive meaning. 

It must be remembered that to understand this doc- 
trine, that "governments derive their just powers from 
the consent of the governed," it should be considered in 
connection with the opposing historic principles which our 
fathers had seen in conflict. Whether all men, at all 
times and places, were capable of self-government was 
not the issue upon which they were called to make a dec- 
laration. In fairness to the Fathers we must recognize 
the political issues over which they were in conflict. 

I . English lawyers in defence of monarchy and arbitrary 
government had early and frequently taught that the king 
was the source of all legislative power. All that the peo- 
ple had to do with the government was to pay its taxes ; 
the people had nothing to do with the laws except to 
obey them. 

1 See an article in Education for January, 1900. 

2 Humboldt, Sphere and Duties of Government. 



The Principles of the Fathers 27 

2. Opposed to this was the principle that the will of 
the people was the source of the law ; that any change in 
the law and the taxes required the consent of The People, 
those whom it concerned. This, too, is a very notthe Royal 

Will Was 

old idea. It goes back at least to the fam- the source 
ous maxim of Edward I. (1297), "that which oftheLaw - 
toucheth all should be approved by all." That is, the 
common will should be the common law. When, therefore, 
a Stuart king announced that he would govern according 
to the common weal, but not according to the Government 
common will, he meant to assert that his will should Be 

both for the 

should be above the law. "Rex est lex," said common 
the king. u No," said our fathers in the Com- w< ? ' a ? d 

& ' by the 

mons House of Parliament, "the King is not Common 
the law; the law is King." "Magna Charta is 
such a fellow as knows no sovereign," as Pym expressed 
it. That is, the great law to which the body of the na- 
tion had agreed should be supreme. The will of the na- 
tion, not the will of the king, shall be the sovereign law. 
And our fathers in England determined that they would 
bring their kings into subjection to their sovereign law or 
they would have no king. This struggle of popular sov- 
ereignty against personal arbitrary government cost one 
king of England his head and another his crown, and when 
the struggle ended by the "Glorious Revolution of 1688" 
it was understood that while kings in England were still to 
be allowed to reign they were never again to be permitted 
to govern. 

During this struggle the popular cause found a voice in 
one of the greatest Englishmen and one of the noblest 
advocates of liberty that has ever lived, — Milton, the 
poet, the philosopher, the statesman. In his defence of 
the English people for their resistance to the Stuart 
tyranny Milton said : 

11 The people, by experience and trial, had found the dan- 



28 The American Republic 

ger and inconvenience of committing arbitrary power to any. 
They invented laws formed or consented to by all that should 
confine and limit the authority of whom they chose to govern 
Milton them ; that thereafter no man, of whose failing they 

Defends the h a( j proof, should rule over them, but law and 
of the reason, abstracted as much as might be from per- 

Peopie to sonal error and frailties. As the magistrate was set 
above the people, so the law was set above the magis- 
trate. Since the king or magistrate holds his authority of the 
people, both originally and naturally for their good in the first 
place and not his own, then may the people, oft as they shall 
judge it for the best, either choose him or reject him, retain 
him or depose him, though no tyrant, merely by the liberty 
and right of freeborn men to be governed as seems to them 
best. If men both wise and religious, not to speak of heathen, 
have done justice upon tyrants what way they could soonest, 
how much more mild and humane then is it to give them fair 
and open trial; to teach lawless kings and all who so much 
adore them, that not mortal man, or his imperious will, but 
justice is the only true sovereign and supreme majesty upon 
earth. 

11 If it be said that our fathers acted without precedent in 
deposing and executing their king, it argues the more wisdom, 
virtue, and magnanimity, that they know themselves able to be 
a precedent to others; who perhaps, in future ages, if they 
prove not too degenerate, will look up with honor, and aspire 
towards these exemplary and matchless deeds of their ances- 
tors, as to the highest top of their civil glory and emulation, 
which heretofore in the pursuance of fame and foreign do- 
minion, spent itself vaingloriously abroad; but henceforth 
may learn a better fortitude to dare execute highest justice on 
them that shall by force of arms endeavor the oppressing and 
bereaving of religion and their liberty at home. That no un- 
bridled potentate or tyrant, but to his sorrow, for the future 
may presume such high and irresponsible license over man- 
kind, to havoc and turn upside down whole kingdoms of men 
as though they were no more in respect to his perverse will than 
a nation of pismires." 



The Principles of the Fathers 29 

Ours, then, should be a government of laws, not of men. 
Government by law should be paramount. And the 
powers of government, — of determining upon George in. 
war and peace and taxation and expenditures Attempts 

1 / to Restore 

and other great measures and policies of gov- personal 
ernment, — these abided in the nation to be Government, 
governed. And when George III., in violation of law, 
attempted to restore personal government in the Colonies, 
vetoing laws and revoking charters at his pleasure, our 
fathers in America determined to abolish the kingship it- 
self as dangerous to the state. They knew and would 
therefore say, as Jefferson expressed it, that "kings are 
the servants not the proprietors of the people"; that 
these rulers, the servants of the people, should be bound 
to recognize and to execute the law as determined upon 
by the representatives of the nation. Sovereign power 
should abide, not in any king, or personal ruler, or fa- 
vored few, but in the people themselves, in the mem- 
bers of the nation, in the body politic. In the political 
people was to be found the source of the powers to be 
exercised. This is one thing, at least, that our fathers 
meant when they declared that "all just powers of gov- 
ernment are derived from the consent of the governed." 
However inadequately a maxim may state it, it is a prin- 
ciple so broad and clear that no one need ever mistake its 
vital meaning. 

3. There was another issue immediately confronting 
the promoters of our Revolution. 

Did a foreign parliament, a representative legislature of 
a people three thousand miles across the sea, have the 
right to control and overrule other parliaments, A state 

the representative legislatures of other peoples, Politically 
of other politically organized communities in an/caplwe 
America? Our fathers, while admitting that constitutes 
the Colonies were parts of the British Empire, 
subject to Imperial regulations, asserted that in all their 



30 The American Republic 

domestic concerns they were responsible to no govern- 
ment but their own; they were the subjects of no gov- 
ernment except that to which they had given their 
consent through their representatives. The issue was 
plain. Historically, it related merely to the extent of 
colonial independence. Politically, it was, whether, of two 
political communities that had shown themselves by ex- 
perience to be capable of self-government, one should be 
allowed to control and dominate the other. This issue 
had nothing to do with the rights of individuals. Con- 
fusion arises from confounding statements concerning the 
rights of individuals with this declaration of our fathers 
touching the rights of nations or of peoples. Y^o people 
— that is, no nation, or state, or politically organized 
community — may be brought under the government of 
any other people, or ruler, without its consent. 

" The law of nature and of nature's God entitle every people 
to its separate and equal right of self-government and direction 
One People among the powers of earth. 

should not " l n 1 845, Texas was such a people and it should 

uponitthe** not have been, and was not, made subject to the 
will of laws of the United States without its consent. 

Another. <<j n I g 00 ^ c UDa is such a people, and to annex 

it to the United States without its consent would violate the 
fundamental principle of the Republic. . . . 

"In 1776, Rhode Island was such a people, not sovereign 
and independent in international law, but with the political 
and constitutional right of self-government guaranteed. Its 
consent to membership in the British Empire, to be subject to 
the commercial and international regulations of Parliament in 
common with the other political communities of that Empire, 
was implied and understood in the constitution under which it 
was governed. It was the unconstitutional attempt to govern 
and tax Rhode Island and her sister Colonies without their 
consent and against their interests that led to this great decla- 
ration of a people's rights. In this declaration our fathers 



The Principles of the Fathers 3 1 

were not considering the doctrine of the social compact; they 
were not considering the rights of minorities; they used the 
word ' people ' as equivalent to ' nation, ' as an organized politi- 
cal person. They were not thinking of scattered settlers, or 
predatory bands roaming over vast regions they could neither 
own nor occupy. They were affirming the right of each of the 
thirteen Colonies, or of all together, to throw off the yoke of 
George III., and to separate itself, or themselves, from Great 
Britain. Our fathers were here speaking of the equal rights of 
nations, of their duties to each other. 

"At what point do a few individuals acquire these rights of 
a people ? The exact point where a few scattered settlements 
become a people, or a few nomadic tribes a nation, does not 
admit of precise mathematical definition. One cannot say, 
any more than we can say when a brook becomes a river, when 
a pond becomes a lake, or a lake becomes a sea." 1 

It will be seen with this reasonable explanation of the 
maxim and of the conflict that brought it forth, that 
Jefferson did not violate this doctrine of the consent of 
the governed when he bought Louisiana in 1803, nor did 
John Quincy Adams when he acquired Florida in 18 19, 
nor Sumner when he made his speech for Alaska in 1867. 
In 1780, when the Continental Congress was peeking to 
induce the States to cede their claims to the Northwest 
Territory to the Central Government, to be held as a 
common possession, Congress solemnly resolved and 
pledged itself that this territory should "be 0ur System 
settled and formed into distinct republican Pledged in 
States, which shall become members of the ' gei£ 

Federal Union and have the same rights of Government 
sovereignty and freedom and independence as states and 
the other States. ' ' 3 From this first accession Territories, 
of territory until to-day, in all of our acquisitions we 
have recognized fully this doctrine of the consent of the 

1 Senator George F. Hoar, Speech in the United States Senate, April 17, 
1900. — Cong. Record. 2 Journals of Congress, 1780. 



32 The American Republic 

governed, by holding that territory so acquired should be 
held to be made into self-governing States. We have at 
times inconsistently postponed or delayed for a season 
the fulfilment of this principle. But it is clear that per- 
manently refusing, or indefinitely postponing to recog- 
nize this principle of self-government within the Republic 
would be inconsistent with the principles of the Fathers. 
4. It is not the purpose of this book to enter into the 
discussion of political philosophy. But if conflicting 
Government philosophies of life be applied to government, 
by consent anc j jf ft fo Q asked whether men had better be 

vs. 

Government governed by coercive means or by persuasion, 
by Force. foy ^q application of external force or by se- 
curing their inward consent, there can be no doubt as 
to which view is taught by the Declaration of Indepen- 
dence. There is just as little doubt as to which phi- 
losophy is founded in wisdom and experience. All just 
governments will finally rest their cause on the consent of the 
governed. Otherwise they will find ultimately that their 
foundations are insecure. This philosophy was applied 
to government in America long before the Declaration 
of Independence. When the Rev. Thomas Hooker pre- 
pared for Connecticut the "first written constitution 
known to history that created a government," he reflected 
his political democratic gospel that "the foundation of 
authority is laid in the free consent of the people." Ac- 
cording to this democratic principle, government is not to 
be looked upon as an end in itself. Government does not 
exist for the sake of good government alone, — that itself, 
as a thing apart from the people, may be perfect and well 
ordered. It exists for the benefit of the people governed ; 
that its people may grow in civilization ; that 

Government i-r t 1 

Exists for the they may be educated and uplifted; that they 
Development ma y b e developed materially, mentally, mor- 
ally, spiritually. It is better for a people that 
they participate in their own government and learn by 



The Principles of the Fathers 33 

their blunders and errors than that they should not be 
free to commit blunders and errors, or that they should be 
compelled by outside authority and compulsion to pursue 
the right way. Governments may otherwise rule over 
subjects, dependents, and slaves, — and keep them such, — 
but there is no other government for the development of 
men. Character comes by freedom and self-control, and 
no just government will ever be unmindful of this greatest 
end of its being, the development of character. Neither 
in politics nor in religion can salvation come in any other 
way. For this reason, also, we may insist upon "gov- 
ernment by the consent of the governed." 

IV. In the fourth place our fathers asserted what we 
are accustomed to call the "right of revolution." " When 
any form of government becomes destructive of TheRi ht 
these ends it is the right of the people to alter or of 

abolish it and to institute a new government, evo utlon - 
such as to them shall seem most likely to effect their safety 
and happiness. * ' 1 

One great end of government is protection, — to secure 
men in their rights to life, liberty, property, happiness, 
and home. But if government, instead of recognizing the 
rights of men, denies these rights ; if, instead of protect- 
ing these rights, it violates them, it is no longer a right- 
eous government and has no right to demand obedience 
and subjection. It may have power to rule, but it has no 
right to rule. "Government ceases to be an object of 
obedience when it becomes an instrument of oppression. ' ' a 
This is not to teach that the citizen should resort to 
violence and revolution against every unjust act of gov- 
ernment. The faithful citizen, as against an 

•11 r 1 11 i Remedies 

unjust government, will first seek all other against an 
means of self-preservation and defence. He unjust 

. . . rr , , Government. 

may submit and surfer a wrong to be done, 

as men usually do, rather than risk the greater evils of 

1 Declaration of Independence. s Godwin, Political Justice. 



34 The American Republic 

resistance and revolution ; he may appeal to the govern- 
ing authority — to the king, to the nation, to public opinion 
— to right the wrong, as men should always do who live 
under a free constitution where there is the right of free 
discussion and free appeal ; he may emigrate and refuse 
longer to live under what he considers an unjust govern- 
ment, as did many of the exiled founders of the United 
States. If all these means of defence fail he will be justi- 
fied in seeking to overthrow a persistently unjust govern- 
ment. This will be his right and it may be his duty. 
But we, like our fathers, are to look upon revolution as a 
last resort : 



" Prudence, indeed, will dictate that governments long es- 
tablished should not be changed for light and transient causes ; 
and accordingly all experience has shown that mankind are 
more disposed to suffer while evils are sufferable than to right 
themselves by abolishing the forms to which they are accus- 
tomed. But when a long train of abuses and usurpations, pur- 
suing invariably the same object, evinces a design to reduce 
them under absolute despotism, it is their right, it is their duty 
to throw off such government, and to provide new guards for 
their future security." J 

The revolutionist, however, must show (i) that his 
cause is just, — the government against which he struggles 
conditions must De clearly an unjust government ; (2) that 
justifying there is no other remedy ; (3) that the evils of 
Revolution, su k m j ss j on are greater than those of resistance ; 
(4) that, from the standpoint of wisdom and expediency, 
there are reasonable chances of success. However, a 
man determined upon liberty or death, who is willing to 
die for his cause, may be justified in facing immediate 
failure if this will prepare the way for subsequent success. 

1 Declaration of Independence. 



The Principles of the Fathers 35 

Governments are often turned from an unjust course by 
an unsuccessful revolution. They fear the repetition of 
resistance. This is what Jefferson had in mind when he 
said that some resistance and bloodshed were necessary 
occasionally to keep governments in order. 1 

V. ' * All men are created equal, ' ' — in their rights to life, 
liberty, and the pursuit of happiness. 

Law and government must recognize the equal claim 
of everybody to these rights. This involves an equal 
claim to all the means of life, liberty, and hap- 
piness, — the opportunities and privileges that qua t oLif^ 
laws, institutions, and governments may af- Liberty, and 
ford.' By government one person's happiness 
must be counted for exactly as much as another's. 
"Everybody is to count for one, and nobody for more 
than one." Greek or Barbarian, Gentile or Jew, rich or 
poor, high or low, ignorant or learned, white or black, — 
without regard to religion, station, lineage, color, race, or 
previous condition of servitude, — all must be treated with- 
out discrimination, must be put upon the same footing by 
government and law, and all must be allowed the fullest 
and freest exercise and development of their natural 
powers. As in play it is the business of the umpire to 
see that the rules of the game apply to all alike, the rich 
boy being given no special favor, the poor boy being de- 
nied no fair chance, so in the State it is the business of 
government to secure "equal rights for all, special privi- 
leges for none." This elemental maxim, so simple and 
self-evident to all fair-minded men, has been assailed and 

1 The utilitarian doctrine of Bentham would make revolution more readily 
justifiable. "It is the right and duty of every man to enter into measures 
of resistance when, according to his best calculations, the probable mis- 
chiefs of resistance appear less to him than the probable mischiefs of sub- 
mission." — Bentham's Works, vol. i., p. 287. For further discussion of 
this topic see " The Rights of Man," by Lyman Abbott, The Outlook, vol. 
lxviii, No. 1, pp. 42-43, May 4, 1901. 

2 Sir James Fitzjames Stephen's Liberty, Equality, Fraternity. 



36 The American Republic 

ridiculed as if it purported to teach what its framers never 
dreamed of. 1 

It asserts nothing whatever with reference to the physi- 
cal, mental, moral, political, or spiritual qualities of men. 
It is one of the commonest observations of life that in all 
these respects men are created unequal. Men are unequal 
in physical stature, in mental powers, in moral emotions, 
in political aptitudes, in spiritual discernments. The 
"standard maxim of free society " which our fathers set 
up does not prevent the recognition of this elemental 
fact in life. It does not teach that government should 
attempt to make men equal in their natural qualities or 
attempt to disregard the natural inequalities in human 
society. It does not say that men should be made to live 
in society as equals or that ''no law should recognize any 
inequality between human beings." It is clear that the 

1 This maxim has been assailed as if it were intended to teach the equality 
of men in their merits and capacities. It is a waste of energy in the oppo- 
nents of democracy to be thus continually slaying the slain. To remind us 
repeatedly of what every one knows, that men are created unequal in respect 
to their mental, moral, and political qualities is nothing to the point. But 
it is gravely used as ground for the denial and repudiation of the funda- 
mental principle underlying the Republic by those who are unwilling to 
accept the results of manhood suffrage and democracy in our national life. 
It may be interesting, if not profitable, to notice a few of the labored 
utterances of some who have been unwilling to apply the logical conclusions 
of the principles of the Declaration of Independence in our politics. In the 
slavery controversy, the anti-slavery agitators persisted in calling to their 
support this original foundation-principle of the Republic, much to the an- 
noyance of a government whose practice was belying its professions. Rufus 
Choate, the brilliant Whig orator, who cared nothing for the rights of the 
slave, referred to the maxim of the Declaration as " a beautiful and glitter- 
ing generality." Charles Sumner, in the Senate Chamber in 1854, made 
this phrase from the Declaration of Independence the basis of his powerful 
arraignment of slavery and the Kansas-Nebraska Bill. Senator Pettit, of 
Indiana, in answer to Sumner, took bolder ground than Choate : " It is 
not only not a self-evident truth that all men are created equal, but it is 
a self-evident lie. In no one instance is there any color of truth in it. I 
speak what is true. I speak what is the judgment of all men, if they dare 
say it, that neither morally, mentally, socially, nor politically does equality 



The Principles of the Fathers 37 

doctrine of equality as a demand for a fair and equal 
chance in the State is unanswerable. But it is not true 
that the doctrine seeks to put him who uses his chance 
well on the same level with him who uses it ill. 
"Equality not only of right but equality of fact is the 
social goal," — this may be according to the canons of 
socialism, but it is not in harmony with the spirit of 
American democracy, 1 which asserts only that no law or 
government should attempt to ordain, establish, and per-\ 
petuate an inequality that would not naturally and other- 
wise exist. Nobody should have any advantage over 
another save the advantage given him by his own mental, 
moral, or physical superiority. There should be "no 
legal barrier to prevent any man from acquiring the 
property and rights or rising to the position" to which 
another member of the community is entitled to attain. 
Accordingly, rank and privilege, political condition and 

exist in any country on the earth. It cannot exist in the nature of things. 
God Himself has not created them equal. It is not, therefore, a truism as 
Jefferson put it forth, but it is false in form and false in fact. God made 
exceptions as to political rights. He created a priesthood. He created 
kings and set them up over the people. It is His recorded and plainly 
written will that there is no such thing as equality among men." 

To this generation these seem like strange words from a disciple of democ- 
racy and a professed follower of Thomas Jefferson, uttered in our Senate 
halls only twenty-eight years after the sage of Monticello had been carried 
to his grave. Chief Justice Taney, speaking for the majority of the Supreme 
Court of the United States in the Dred Scott case, in 1857, referring to the 
Declaration of Independence, said : "It is evident that the slave race were 
not intended to be included in the general words used in that memorable 
instrument. The words would seem to embrace the whole human race, but 
that they were not so intended is too clear for dispute ; in that case the 
conduct of the distinguished men who framed the Declaration of Inde- 
pendence would have been utterly and flagrantly inconsistent with the prin- 
ciples they asserted, and instead of the sympathy of mankind to which they 
so confidently appealed they would have deserved and received universal 
rebuke and reprobation." 

The student who may be interested in other historical utterances touching 
this maxim is referred to the Lincoln-Douglas Debates, 1858. 

1 Stephen, Liberty, Equality, Fraternity. 



38 The American Republic 

the right to rule, "cannot be hereditary, but must be 
open to every person who, by his talent, diligence, and 
good fortune is capable of attaining to them." ! All 
qualities and all inequalities should have fair play. 

This maxim of human equality, like the others to which 
we have referred, is to be studied in connection with what 
. hts it opposes. It does not oppose or deny that 
wiiiRecog- reward should be according to merit, or that 
mze Ment. ^ ere are differences of capacity for serving the 
community, or that high function should go with high 
faculty, or that a man's rights in politics are strictly 
limited to a right of the same protection for his own in- 
terests as is given to the interests of others. 8 Our maxim, 
far from opposing these things, confronted very different 
ideas and practices. 

There have always been interests and parties in the 
state striving to inculcate the doctrine that there are 
is there a classes born to rule, while others are born to 
Ruling service and subjection ; that there is a natural 

superiority in this ruling class, and that all other 
classes are naturally inferior; that some were born booted 
and spurred ready for riding, while others were born for 
saddles and bridles, ready to be ridden ; that these burden- 
bearers, the great masses of men, must be content with 
the laborious and obscure condition in which they were 
born, and that there must not be raised in their minds 
false ideals and vain expectations that doors of opportu- 
nity may be open also to them and their children, leading 
to education, learning, position, power, and fame. These 
were not for the common herd but for their God-ap- 
pointed rulers. They who taught this false doctrine 
would therefore impose artificial restraints upon the many 
and confer special favors and privileges upon the few. 
The application of this doctrine in government invariably 
prevents the recognition of all true merit, of all natural 

1 Lowell, Essays on Government, p. 176, 2 See Morley's Rousseau. 



The Principles of the Fathers 39 

and real superior ability and power for the service of the 
state. It was this doctrine and its consequences that 
confronted the young Republic in 1776. The men of 
y j6 saw clearly that this had led to a superstitious and 
idolatrous reverence for royalty, to class government, to 
an artificial nobility with special privileges, to an aris- 
tocratic social caste claiming superior ancestral qualities 
with special hereditary rights, to artificial restraints and 
special favors, and to the denial of the rights of the peo- 
ple to interfere in politics. These were the Evilsofa 
ideas and practices with which our fathers were Artificial 
confronted. The founders of the Republic Aristocrac y- 
were especially impressed with the undue influence in 
government of royal pageantry and parade, and with the 
social injustice and wrongs of an hereditary, artificial aris- 
tocracy. They therefore, when they came to make a 
National Constitution, wrote it in their fundamental law 
that no title of nobility should ever be granted in America 
by any government, State or National. 1 

In opposition to the polity of a ruling class with 
special favors, our fathers asserted their determination to 
erect another polity, — a self-governed republic Government 
in which the people may choose their rulers ; in should 

which, in respect not only to the legal protec- Fairfield 
tion and civil rights of the State, but to its and 

, r ~ . . 11 No Favor. 

honors, offices, opportunities, and emoluments, 

there should be a fair field and no favor ; in which every 

1 Const., Art. I., Sees. 9 and 10. 

The opinion of the founders of the American Republic, now an ingrained 
American conviction, as to the evils of an artificial aristocracy, has lately- 
been expressed by a distinguished English scholar in writing on the British 
aristocracy : " The real evil of peers and peerages, of squires and squir- 
archy, lies in the substitution of a false and artificial inequality of birth and 
rank for the real and natural inequality of brains and faculties. — Nobody is 
anything by the side of a peer. The literary men, artists, thinkers, dis- 
coverers, scientists, poets, the prophets and seers of the race, — these can 
have but a small place in public estimation. How unimportant a great 



40 The American Republic 

man should be the equal of every other in his right 
to pursue his happiness in his own way, subject to the 
common weal. This is not to assert the right of every 
man to be put into the possession of power which is not 
naturally and legitimately his own ; it does not mean the 
equal right of every man to vote, to govern, to be a ruler, 
a governor, or a president ; but, rather, an equal right to 
become able and fit to be a voter, a ruler, a governor, a 
president, — every man to be equally and absolutely unre- 
strained by a single artificial barrier of government or civil 
society. The principle implies that this end will best be 
gained by manhood suffrage in a republican state. 

Our fathers were also confronting social and political 
conditions that called for protest and opposition, and it 
was their purpose to announce a principle which, if re- 
duced to practice in the state, would produce fairer and 
more equitable conditions. 

' ' We may always be quite sure, ' ' says Mr. Morley, ' ' that 
no set of ideas could ever have produced this re- 
Found sounding effect on opinion unless they contained 
unequal something which the social or spiritual condi- 

Conditions . . . . _ , t r 

the Result tion of men whom they inflamed made true for 
of unjust t h e time and true in a very urgent sense. ' ' - Mr. 

Laws. J fe 

Morley here refers to the doctrine of equality 
announced in the Declaration of Independence. These 

writer, how important a fool with a title ! Lord-worship, fiunkeyism, 
snobbery, eat into the very heart and brain of the nation. Such a system 
makes the struggle of merit for recognition harder. It distracts the atten- 
tion of the public from individualities and principles which might raise and 
widen it to individualities and principles which narrow and retard. It pro- 
duces a universal reign of slavish snobbery ruinous to the manliness, the 
self-respect, the dignity, and the independence of the nation. The exist- 
ence of a class which receives public attention on account of birth alone 
stands fatally in the way of the really superior class which deserves and 
struggles toward recognition in every direction. The artificial betterness 
eclipses the natural. The man-made inequality keeps from the service of 
humanity the God-made inequality that can best advance it." — Grant Allen 
in The Cosmopolitan, April, 1901. ! Essay on Rousseau. 



The Principles of the Fathers 41 

pages cannot describe the unjust political and social con- 
ditions and the governmental inequities of Europe in the 
eighteenth century, nor can they portray the outrageous 
wrongs inflicted upon the masses of Europe by the ruling 
classes, — which made government but another name for 
the denial of justice, but another name for tyranny and 
oppression. England after her Revolution of 1688 was 
nominally a free government, and her aristocracy was the 
best in Europe ; but that did not mitigate the fact that 
there was no provision for promoting the interests of the 
masses of men, and that a system and monopoly of gov- 
ernment by property was being created which gave tre- 
mendous power and wealth to an exclusive class. Mr. 
Murdoch, in his History of English Reform, reviews the 
legislation of England from 1688 to 18 10. He recites 
upon his pages sixty-three statutes for the protection of 
a landed aristocracy, where there was a dismal void of 
laws for the protection of the masses of men. 
Laws to protect creditors and landlords, restric- benefits of 
tive corn-laws, laws against combinations of Government 
workmen, compelling journeyman tailors to Monopolized 
work for fixed wages, prohibiting public meet- by the 

ings of laborers, protecting game preserves, the Expense 
ejecting tenants, freeing peers from imprison- ofthe 

... . - . 1-ti Masses. 

ment, providing prisons for artisans and labor- 
ers, providing seven years' transportation for injuring 
young shrubs and plants in the night, — these are typical 
specimens of the legislation of a century of which it may 
be said that it was not in the enactment, but in the ad- 
ministration, in which the despotism was chiefly felt. 
Punishments were merciless, pitiless, and cruel. From a 
study of that legislation and its administration, Murdoch 
is led to remark that the rule of the classes was "severe, 
selfish, systematically suppressive." 

"The treatment of the people," he says, "was perhaps worse 



4 2 The American Republic 

than that under the most despotic of the monarchs, for it was 
tyranny under the sanction of law, and was upheld by a mix- 
ture of superior knowledge and military power. The final pic- 
ture to look at was a nation great and wealthy and luxurious, 
and another nation poverty-stricken, ignorant and debased, 
both living side by side in the same island, the one the govern- 
ors, the other the governed." 

It was worse in France. One may not judge the social 
condition of an age or of a people by a single flash-light. 
But a word-picture of La Bruyere, often quoted about 
1776, served to illustrate the ancien regime : 

"One sees certain ferocious animals, male and female, scat- 
tered over the country, black, livid, and burned by the sun, 
attached to the land which they dig and work upon 

Results of ... , _ . ' & _ . * 

Tyranny wl th incomprehensible obstinacy. Ihey have an 
and class articulate voice, and when they rise on their feet 
in France. they exhibit a human face ; and in fact they are 
men. At night they retire to their dens, where 
they live upon black bread, water, and roots. Sometimes they 
live on oats, they dress in skins and make bread of ferns, 
but they spare other men the trouble of sowing, cultivating 
and gathering articles of food." 

These were the governed, — a peasant, toiling, tax-paying, 
disinherited nation. A few noble families, a hundred 
thousand or more, were the governors, — "by the grace of 
God!" 

It seems that the fulness of time had come for an ex- 
pression of human rights. When our fathers published 
Qur their Declaration to the world it was well-nigh 

Declaration forgotten throughout the continent of Europe 
R f . H h "™ an that human rights existed. Aristocracy, mon- 
was archy, absolutism, had arisen on the ruins of 

opportune. mediaeval i iberty# << The old doctrine of the 

Church, taught by Aquinas, that the king exists for the 



The Principles of the Fathers 43 

people, was contemptuously rejected for the doctrine that 
the people existed for the king, whose divine right to 
govern wrong was a favorite theme of a servile clergy/' 1 

It was meet and opportune that in their great Declara- 
tion our fathers should proclaim in politics the underly- 
ing, dominant idea of their religion, — the fatherhood of 
God, the brotherhood of man ; that they should seek to 
teach men a proper appreciation of their individual worth ; 
that they are all equally the children of a common Father. 

Lincoln is at once the best product and the best inter- 
preter of the maxims of the Declaration of Independence. 

"The fathers intended," he says, "to set up a standard 
maxim for free society, which should be familiar to all and 
revered by all; constantly looked to, constantly 
labored for, and, even though never perfectly Explains and 
attained, constantly approximated. Its author Defends 
meant it to be, as, thank God, it is now proving Declaration 
itself, a stumbling-block to all those who, in after of inde- 

times, might seek to turn a free people back into pen 
the hateful paths of despotism. They knew the proneness of 
prosperity to breed tyrants, and they meant, when such should 
reappear in this fair land and commence their avocation, they 
should find left for them at least one hard nut to crack. ' ' 3 



These principles have led to the recognition of certain rights 
in the common law and to certain constitutional guarantees 
that have been incorporated into our fundamental law — written 
and unwritten, — guarantees that should be applied to all peo- 
ples under the control and sovereignty of our government. 

i. The equality of all citizens before just laws of their own 
enactment. Equal rights for all, special privileges for none, — 
the fundamental maxim of American Democracy. 

2. No person shall be deprived of life, liberty, or property 
without due process of law. 

1 Lilly, First Principles of Politics, p. 36. 

2 Lincoln's speech on the Dred Scott decision, Johnston and Woodburn's 
American Orations, vol. iii., p. 164. 



44 The American Republic 

3. Private property shall not be taken for public use without 
just compensation. 

4. In all criminal prosecutions the accused shall enjoy the 

right of a speedy and public trial, shall be informed 
Princteiel ° °* t ^ ie nature an d cause of the accusation, shall be 
incorporated confronted with the witnesses against him, and have 
Americ compulsory process for obtaining witnesses in his 

System of favor, and the assistance of counsel for his defence. 
Government. ^ Excessive bail shall not be required, nor ex- 
cessive fines imposed, nor cruel and unusual punishment 
inflicted. 

6. No person shall be put twice in jeopardy for the same 
offence, or be compelled in any criminal case to be a witness 
against himself. 

7. The right to be secure against unreasonable searches and 
seizures shall not be violated. 

8. Neither slavery nor involuntary servitude shall exist, ex- 
cept as a punishment for crime. 

9. No bill of attainder or ex post facto law shall be passed. 
10. No law shall be passed abridging the freedom of speech, 

These or °f tne P ress > or tne right of the people peaceably 

Principles to assemble and petition the Government for a re- 
Find support d f grievances 

in Con- o 

stitutionai 11. No law shall be made respecting the estab- 

Guarantees. lament of religion, or prohibiting the free exercise 
thereof, — and no person demeaning himself in an orderly 
manner shall ever be disturbed on account of his religious 
sentiments or his mode of worship. 1 There shall be a total 
separation of Church and State, for the sake alike of civil and 
religious freedom. 

12. The diffusion of information and arraingment of all 
abuses at the bar of public reason, — involving the faithful ed- 
ucation of the rising generation that they may enjoy, preserve, 
and transmit the conditions essential to their political happi- 
ness. 

13. Peace, commerce, and honest friendship with all nations, 
entangling alliances with none. 8 

1 Ordinance of 1787. 8 Jefferson's First Inaugural. 



The Principles of the Fathers 45 

14. The support of the State governments in all their rights 
as the most competent administrators of our domestic con- 
cerns, and the surest bulwark of anti-republican tendencies. 1 

15. The preservation of the General Government, in its 
whole constitutional vigor, as the sheet-anchor of our peace at 
home and safety abroad. 1 

16. A jealous care of the right of election by the people. 1 

17. Absolute acquiescence in the decisions of the majority, 
the vital principle of republics, from which there is no appeal 
but to force, the vital principle of despotism. 1 

1 ' These principles form the bright constellation which has 
gone before us and guided our steps through an age of revo- 
lution and reformation." 8 These are the principles of the 
American Democracy for which our fathers lived. They are 
as essential to the happiness and the prosperity of the nation 
in our day as in theirs. It is right that young Americans 
should do as their fathers did, and, for the maintenance of 
these principles in the life of the nation, mutually pledge to 
one another " their lives, their fortunes and their sacred 
honor." 

REFERENCES. 

1. Burke, Edmund, Reflections on the French Revolution, citing Price's 

Sermon on Love of Country, November 4, 1789 ; Appeal from the 
New to the Old Whigs, citing Lechmere's Speech in the Trial of 
Sacheverell. State Trials, vol. v., p. 651. 

2. Stephen, Leslie, History of EnglishThought, vol. ii. 

3. Locke, John, Treatises on Government (1690) ; Letters on Toleration 

(1689). The first was a reply to Sir R. Filmer (" Patriarcha "), who 
defended absolute monarchy. Locke wrote in justification of the 
Revolution of 1688. 

4. Sidney, Algernon, Discourses on Government. Both Locke and 

Sidney accepted the compact theory, as between king and people, 
which became the orthodox Whig doctrine. 

5. Priestley, Treatise on Civil Government (1768). 

6. Price, Observations on Civil History (1775). 

7. Bentham, Jeremy, Fragment on Government. 

8. Paine, The Rights of Man. 

9. Mackintosh, Vindicice Gallicce. 

1 Jefferson's First Inaugural. * Jefferson, Inaugural Address. 



4 6 The American Republic 

10. Godwin, Wm., Political Justice. Paine, Mackintosh, and Godwin 

wrote in opposition to Burke's Reflections. 

11. Lecky, History of England in Eighteenth Century, vol. i. See refer- 

ences, p. 9, on Divine Right. 

12. Ritchie, David G., Studies in Political and Social Ethics. Chapter 

on " Equality." 

13. Hooker, " Ecclesiastical Polity' 1 '' (1594). 

14. Lowell, Essays on Government, iv. , " The Theory of the Social 

Compact." 

15. Grotius, De Jure Belli et Pads, Introduction and the first chapters 

on the nature of law, (1625). 

16. Milton, The Tenure of Kings and Magistrates, (1649). Written in 

justification of the execution of Charles I. 

17. Hobbes, Leviathan, (1651), written in support of Absolute Monarchy. 

18. Austin, John, Jurisprudence. 

19. Roscher, Political Economy. Notes to Section LXXIX. See 

references to authorities on the spread of socialistic ideas. 

20. Marsiglio, of Padua (1324). The laws ought to be made by all the 

citizens. Marsiglio based this sovereignty of the people upon the 
greater likelihood of the laws being better obeyed, and being good 
laws when made by the whole body affected. 

21. Rousseau (1751, 1753, 1762). 

22. 4t Equality," essay by Chas. Dudley Warner, in Relation of Life to 

Literature (1897). 

23. Morley, John, Essay on Rousseau. 

24. The Outlook, Editorial on "The Principles of the Fathers," May 20, 

1899 ; on " Concerning Self-Government, " May 27, 1899. 

25. Abbott, Lyman, The Rights of Man, Chapter III. 



CHAPTER II 

THE FEDERAL NATION 

ARISTOTLE, 1 the father of political science, taught 
long ago what every schoolboy is supposed to know 
in these days, that there are three forms of gov- Forms of 
ernment : Monarchy, Aristocracy, Democracy. Government. 

Monarchy is the rule of an individual. This is the form 
of government under which the sovereignty of the state 
is vested in the hands of a single ruler. If the political 
powers of the individual are unlimited by law, if they 
are exercised at his own will without restraint, we have 
an unlimited or absolute monarchy. If the monarch's 
powers are limited by the law of a constitution, we 
have a limited, or constitutional, monarchy. Very few 
civilized countries now retain the form of an absolute 
monarchy. We speak further of this form of government 
under the term " Despotism.' ' 

Aristocracy is the rule of a minority, of a superior few. 

Strictly, an Aristocracy is a government of the few best 
citizens exercised for the best interests of the state. 3 

A Democracy is the rule of a majority, of the masses, 
exercised for the common interests. 

Of the three forms of government in his classification 
Aristotle conceived that each had its perverted form. 
There were three normal, or good forms and Perverted 
three bad, or perverted forms. Forms. 

Pervert Monarchy and you have a Despotism or a 
Tyranny. 

1 Aristotle lived from 384 to 322 B.C. * See pp. 39, 40, 49. 

47 



48 The American Republic 

Pervert Aristocracy and you have an Oligarchy. 

Pervert Democracy and you have a Mobocracy. 1 

The perverted forms, then, are : 

I. A Despotism, or Tyranny. This is like the absolute 
monarchy, — a government in which the power of the 
a Despotism monarch is not constitutionally limited. It is 
or Tyranny, ^he rule of an individual exercised by his own 
will, or caprice, without control of law or without re- 
straint by any other authority. An absolute monarchy is 
a despotism. The despot may be a good man and there- 
fore his government may be a benevolent despotism. But 
he may also be a bad man and govern like a tyrant. 

A Tyrant is a malevolent despot, a ruler with absolute 
power who oppresses the people and governs in his own 
interest. "A Tyrant," says Milton, quoting St. Basil, 
"whether by wrong or by right coming to the throne, is 
he who, regarding neither law nor the common good, 
reigns only for himself and his faction." 3 To the Greek, 
in Aristotle's day, the tyrant was one who seized upon 
power irregularly and lawlessly, like a usurper, without 
color of title. The usurping tyrant was not necessarily 
a bad ruler who oppressed the people. He might find 
his interests best subserved by mild, wise, and benevolent 
government, and he often provided a better government 
than that which he overthrew. But in our modern sense 
a tyrant is an absolute ruler who governs oppressively. 
While some absolute rulers may be wise and good, pro- 
moting good government in a capable way ; and while, on 
the other hand, democracies may sometimes exercise 

1 I give here the ideas but not the terms of Aristotle. For our word 
" Democracy " he used the term " Polity." He used " democracy " as a per- 
version of '-polity," as equivalent to our " mobocracy," or the rule of the 
unregulated mob. In Aristotle's day the democracy of the Greek cities, 
especially of Athens, was a degenerate rule, the rule of the incompetent, 
uneducated masses, moved without law, and by excitement and passion. 

9 Milton's Tenure of Kings and Magistrates, 



The Federal Nation 49 

tyranny, governing in as capricious, arbitrary, and des- 
potic a manner as any single monarch, yet we usually 
think very properly that the absolute monarchy is the 
most inconsistent with free government. "Monarchy 
unaccountable is the worst form of tyranny and least of 
all to be endured by free-born men." 1 This judgment 
of Aristotle, expressed more than two thousand years 
ago, is confirmed by history and modern opinion.' 

2. An Oligarchy is the rule of the few, exercised at 
their own behest. In modern conception the The 

oligarchy may be : oligarchy. 

(i) An Aristocracy of landed and hereditary privileges, 
who use the government for their own benefit, or, 

(2) A Plutocracy, the rule of the rich, by means of con- 
stitutions and laws giving special privileges and power to 
wealth and property. Under such a govern- The 

ment the few, by means of their wealth, corrupt Plutocracy. 
or force the people into subjection. This is the most 
vicious and corrupting of all forms of government, and 
under it the people are the most dependent. 

The distinction between Aristocracy and Oligarchy has 
been largely obliterated. The two terms are often used 
as convertible. But this distinction is worthy OIi arch and 
of notice: The Oligarchy commonly denotes Aristocracy 
the government of a wealthy minority in its Com P ared - 
own interest, and it always has a bad signification, while 
Aristocracy, though usually quite objectionable to the 
advocate of a Democracy, may have a good significa- 
tion. By its original meaning and in its true sense an 

Aristotle's Politics, Bk. IV., ch. x. 

" Benevolent despotism " is an expression frequently used to excuse the 
subjection of weaker peoples to superior force. The weakness of human 
nature is such that it cannot endure the temptations of irresponsible 
power ; and, as a matter of fact, a benevolent despotism has been such a 
rare phenomenon in the history of the world that most reasonable men are 
disposed to allow a people to govern themselves badly rather than to sub- 
ject them to the unrestrained power of any man, or small set of men. 



50 The American Republic 

Aristocracy suggests the "government of persons especi- 
ally qualified by experience, training, and abilities for the 
work of government." 1 If we look merely to the quality 
of the government and not to the character and develop- 
ment of the people to be governed, no one can reasonably 
object to a true Aristocracy. 2 If there were a fair, safe 
way of choosing such competent persons to govern, and 
if guarantees could be had that they would govern in the 
interest of all and not chiefly in the interest of a class, it 
would be readily agreed that such would be the most de- 
sirable of all forms of government. The difficulty is not 
in agreeing that the best and most competent persons 
should rule, but rather in finding the safest way of placing 
such persons in power. It must be borne in mind that 
the motive with which one rules is a vital factor in deter- 
mining the competency and virtue of a government. If 
power is not exercised unselfishly for the benefit of all, 
the government is seriously vitiated. It is the claim of 
Democracy that the chief end of government — the edu- 
cation of the people, "the greatest good to the greatest 
number" — is best secured by the democratic representa- 
tive system. 

Turning again to the Oligarchy, we notice that it is 
usually a plutocracy, but not necessarily so. When, be- 
The fore our Civil War, a slave-owner in Mississippi 

oligarchy with one thousand slaves had as much political 
illustrated. p 0wer a j- Washington as six hundred free men 
in Ohio, he was called an oligarch, and the government 
of the slave-master class in the South was called an oli- 
garchy. A comparatively few slave-owners exercised 
dominant power in the State. Since the war, the white 
democracy in the South has triumphed over the former 
landed, slaveholding oligarchy. When the English barons 
at Runny mede forced from King John the Magna Charta 
and, in effect, became the chief power in the realm for a 

1 Sidgwick, The Elements of Politics, p. 582. 2 See pp. 39, 40. 



The Federal Nation 51 

number of years, constraining the King to do their will, 
in the days before the common people came to political 
power in Parliament, — these barons constituted then an 
Oligarchy. They represented wealth partly, but more 
especially landed estates and political privileges. 

3. Mobocracy, the third perverted form, is the rule of 
the ignorant, unenlightened mob, without restraint of 
law. This has been well called "the noisy 
prelude to anarchy." Mobocracy marks not a 
form of government, but rather the absence of govern- 
ment. The term "ochlocracy" is applied to this form of 
rule by the multitude. 

Besides the forms of government which we have men- 
tioned, — monarchy, aristocracy, democracy, despotism, 
tyranny, oligarchy, plutocracy, and mobocracy, there 
are others recognized by political science and observed in 
political history which do not seem to be provided for in 
the various forms suggested by Aristotle's classification. 

A Theocracy is a form of government in which no hu- 
man authority is recognized as the final, ultimate source 
of authority, but in which the supreme power 
is attributed to God, while the men who exer- 
cise rule are but the servants and vicegerents of the un- 
seen ruler The Mosaic State of the Jews, or of Joshua, 
and the Papal States of mediaeval times, are cases in illus- 
tration. A Theocracy is the rule of priests, or some 
form of Church government. The Early Puritan State 
in Massachusetts, or the government of the Presbyterian 
Kirk in Scotland, when the Church ruled the State, are 
cases in point. 

Bureaucracy is a government by the office-holders, each 
department being under the control of a chief, each chief 
being responsible to some central head. Under such a 
system few interests are left to private individuals, and 
the interference of the state is carried to an extreme ex- 
cess. Everything is regulated by officialism. It is a 



52 The American Republic 

system of over-government. The officials become a class 
outside of and above the people. They inflict upon the 
people the evils of neglect where government agencies 
are needed ; of too much interference where the people 
should be left alone ; often, of bad management and cor- 
ruption, and of domineering and autocratic conduct on 
the part of the officials, and of consequent humiliation to 
all citizens who have to come into personal contact with 
authority. The most complete form of Bureaucracy on 
a large scale is that furnished by Russia. But it is not 
exclusively connected with any particular form of govern- 
ment. All modern governments, including America, are 
more or less corrupted by it. It has been said that 
Bureaucracy is the "only form of government for which 
the philosopher can find no defence." 1 

Militarism should also be noticed in a study of govern- 
ment. Militarism is a system under which government 
if not exercised is at least controlled by mili- 

Militarism. tt i 1 • 

tary force and by a military class. Under this 
system undue prominence is given to military training 
and military glory, and the military class are the domi- 
nant factor in the state. Militarism cultivates pride of 
rank among the official class and an esprit de corps which 
leads the military to stand by the interest of their class 
often at the expense of justice and the public welfare. 
It leads generally to the assertion of arbitrary, arrogant, 
and domineering power over the masses. The system 
involves large standing armies whose burdens are heavy 
upon the people. It divests the freeman of all political 
power, and subordinates the civil interests of men to the 
military. It exalts authority and disregards liberty, re- 
quiring among its subjects unquestioning obedience. It 
looks upon the citizen as a soldier, present or prospective, 
and it tends to cultivate among its subjects false and flat- 
tering obeisance, subserviency, and servility. As a system 

1 See Lalor's Cyclopaedia of Political Science. 



The Federal Nation 53 

of government, Militarism is the most hateful to self-re- 
specting freemen. It cannot be said to mark the absence 
of all law, for it has its martial law, its martial courts, and 
its orderly modes of procedure. It is most efficient in pre- 
serving order and enforcing authority and, when well and 
honestly officered and administered, in providing good 
and efficient administration. But it may be said to mark 
the absence of all civil law and constitutionalism. "In 
the midst of arms laws are silent." Military rule is abso- 
lute and autocratic ; it is organized to suppress resistance 
and is the farthest removed from anything like self-gov- 
ernment. It is a system which will not be tolerated by 
enlightened, self-governing men, except under stern neces- * 
sity for the public defence. Militarism is especially dis- 
tasteful to a democracy, where equality of rights and 
standing is inculcated. Under military rule, artificial and 
sometimes false standards of honor are erected ; socially, 
a great gulf is fixed between the private soldier and the 
commissioned officer, and the plain citizen is despised. 
A free people will always subordinate the military to the « 
civil arm. If in times of war and public danger the mili- 
tary is permitted to suppress the civil power, the free 
citizen will remember that it is the suppression of civil 
liberty for the sake of the public defence, and it will be 
permitted only with the feeling that the people may 
afford to "part with their liberty for a while in order to 
preserve it forever." "Military rule over a civilized 
people actuated by democratic conviction is always ob- 
jectionable." 1 

1 Gen. Davis, in instituting civil government in Porto Rico. 

The following will indicate how Militarism is regarded by an intelligent 
writer in a military republic : "Militarism causes economic ruin, intel- 
lectual decay, moral feebleness, political anarchy. It is apt to result in a 
general, or universal, obligatory military service of three or five years. 
The sons of the rich, through different pretexts, manage to escape with a 
year or less ; but the sons of the farmers, of the workmen, and the whole 
laboring class of the nation remain three years in the army. . . . The 



54 The American Republic 

There should be explained, also, the terms " republi- 
can/' "federal," "national," and "consolidated," which 
we often hear applied to governments. We may best 
explain these terms in connection with the study of our 
own form of government. 

It is customary to say that the United States of America 
is a Republic, — that we have a republican' form of gov- 
Repubiican ernment. When the Constitutional Convention 
Government. Q f j^g^ submitted the new plan of government 
to the people of the States, Madison said that if it should 
be found to depart from the republican character its 
advocates would be obliged to abandon it as no longer 
defensible. 1 Madison spoke with authority, and it is 
evident that the framers of our Constitution intended 
to establish a republican form of government. The Con- 
stitution says : 

1 ' The United States shall guarantee to every State in this 
Union a republican form of government. ' ' 

But our Constitution does not define a republican form 
of government, and there have been great disputes on 
that subject. But the general understanding is clear, 
that a republican form of government is one in which the 
people's representatives make the laws and their agents 
administer them, and in which the people also, directly 
or indirectly, choose the executive agents. It does not 
follow that the whole body of the people, or even the 
whole body of adult male competent persons, should be 
admitted to political privileges. The law in the State 

barracks life is one of idleness, moral inertia, and low debauch. The in- 
dustrial workman no longer knows his trade ; the young farmer, after loaf- 
ing so long in the wine shops of garrison towns, no longer desires to return 
to the soil, and agriculture is abandoned." — Urbain Gohier, author of 
L'Arme'e contre la Nation, in New York Independent, on " The Danger of 
Militarism," Jan. 25, 1900. 

1 Federalist, No. 39, p. 232, Lodge Ed. 



The Federal Nation 55 

will determine that. 1 Many nations have been called re- 
publics whose forms of government did not fulfil our 
conception of this term. Holland was called a republic, 
but no particle of its supreme authority was derived from 
the people. Rome was called a republic, but Rome, 
under the republic, was organized on a military basis, and 
the power of the people was very limited. Venice was 
called a republic, but in Venice absolute power was exer- 
cised over the great body of the people by a small body 
of hereditary nobles. Poland was called a republic, but 
the government of Poland was a bad mixture of aristoc- 
racy and monarchy. Athens was called a republic, but in 
Athens there were ten slaves to one freeman : the ruling 
citizenship was a mere handful. Thus we may recognize, 
from the history of political science, several kinds of 
republics : 

An Oligarchic Republic, like Venice. This was a re- 
public only in name ; only a handful of nobles exercised 
their oppressions under an honorable title. varieties of 

A Military Republic, like Rome. This was Republics, 
organized on a military plan for military purposes, that 
the whole power of the State might be used in quick, 
united action in conquest or defence. 

A Federal Republic, like Switzerland or the United 
States, made up of minor states, also republics, united 
for common purposes. 

A Centralized or National Republic, like France, with 
all powers of government exercised by the Central Gov- 
ernment. The United States is, as we shall see, partly a 
Federal and partly a National Republic. 



1 Cooley, Constitutional Law, p. 195 ; Luther vs. Borden (1848) ; 7 
Howard 42 (Rhode Island case), Federalist, Nos. 21, 43 ; Boyd, Cases on 
Constitutional Law , pp. 647-652 ; Cooley, Principles of Constitutional Law, 
pp. 194-198 ; Boutwell, The Constitution of the United States at the End of 
the First Century, pp. 343-350 ; Texas vs. White, Supreme Court Decision, 
7 Wall 700. 



56 The American Republic 

A Democratic Republic, like Switzerland or the United 
States, in which the sovereign power is derived from and 
is exercised, either directly or indirectly, by the great 
body of the people. 

Madison, in The Federalist, after noticing various mis- 
applications of the term, defines a republic, in substance, 
as follows: 

1 ' A Republic is a government which derives all its powers, 
directly or indirectly, from the great body of the people. It 
Madison's * s administered by persons holding their offices 
Definition of either during pleasure or for a limited period, or 
Republic. during good behavior. It is essential to such a 
government that it be derived from the great body of the 
society, not from a small proportion or favored class. It is 
sufficient for such a government that the persons administer- 
ing it be appointed, either directly or indirectly, by the peo- 
ple; and that they hold their appointments by either of the 
tenures just specified." ' 

Briefly, then, we may say, that a republic is a state in 
which the governmental power is exercised by the people 
through their elected representatives. This power, while 
it is derived from the people, must be exercised under a 
system of legal and constitutional restraints. The re- 
public implies that the political and social impulses of the 
people are to be restrained by constitutional forms through 
which, only, the rule of the people may be made effective. 
Republican government may virtually exist under mon- 
archical forms, as in England. There the government is 
essentially republican while nominally monarchical. But 
in the United States the republican form is specifically 
guaranteed by the Constitution. 

The republican theory demands that every part of the 
people shall duly influence the acts of the state. The 
government shall not be in the hands of a class, or of a 

1 The Federalist, No. 39. 



The Federal Nation 57 

combination of classes. If a class can do what it will in 
the state it will often do less than justice toward other 
classes. The republic requires, for instance, that the 
state shall not act in such a way as to bring the nation 
into a war for the benefit of its aristocracy, or of its com- 
mercial class, while the war must be paid for with the 
money and lives of all the people. It will therefore stand, 
not only for equality of civil rights but for an equal dis- 
tribution of political power. 1 

It will be seen, from what has been said, that ours is 
not an aristocratic republic, nor an oligarchic republic, 
but, rather, a democratic republic, — a state in which the 
mass of the people are represented in the government. 
For this reason our nation is sometimes called a de- 
mocracy. 

A Democracy is the form of the state in which the 
sovereign power is exercised by the people A 

themselves. Democracy. 

In a Pure, or an Absolute Democracy, the government 
is by the simple direct action of the people, without other 
control than such as their own temperance or 
moral restraint may impose at the time of their Democracy 
assembly. It will be understood that a pure "^soiute^r 
democracy cannot exist over any considerable Representa- 
extent of territory. Only in little city re- 
publics, like those of ancient Greece or mediaeval Italy, 
could all the citizens come together to make the laws. 
Although we may imagine the whole body of the people 
in a very little state making the laws it is very difficult, 
if not impossible, to imagine them as executing the laws. 
They must have their agents to do this. 

" The whole people cannot operate the government any 
more than the whole of twenty people in an omnibus can drive 
the horses. Some one must drive as some one must govern. ' ' a 
1 Hosmer, The People and Politics. 9 Ibid., p. 239. 



58 The American Republic 

The representative idea being introduced we find the 
Pure Democracy shading into 

The Representative Democracy. Under this form the 
people, besides making the laws, elect executive and 
judicial agents to carry out the laws. This is a govern- 
ment in which the actual governing power is but one step 
removed from the people. The laws are ordered by and 
the governing agents are appointed by, and are directly 
responsible to, the people. In a government under the 
Initiative and Referendum, by which the people may 
secure a vote upon a proposal, and by their vote may 
issue a mandate to the law-forming body to incorporate 
the approved measure into law, and under which the 
enacting, executive, and judicial officers are appointed by, 
and are directly responsible to, the people, — such a gov- 
ernment would be a Representative Democracy. Ours 
is sometimes called a Constitutional Democracy. This 
may be defined as a government in which the power of 
the people is exercised through representatives under 
constitutional restraints ; a state in which the people have 
prescribed for themselves in a constitution the ways and 
means by which the people shall govern. The difference 
between the Constitutional Democracy and the Demo- 
cratic Republic cannot be clearly defined. Broadly 
speaking, the distinction lies in the extent and directness 
of popular power. In proportion as the people rule 
directly, in that proportion do we tend from the Repub- 
lican to the Democratic form. The election of the Presi- 
dent, of United States Senators, and of Supreme Court 
Judges by direct vote of the people would, of course, 
make our Government more democratic. 

Looking at this subject historically, it is clearly evident 
that the American Republic has grown much more demo- ' 
cratic than it was in 1787. It was not the intention of 
the framers of the Constitution to form a Representative 
Democracy. The power was not to be easily and immedi- 



The Federal Nation 59 

ately exercised at the popular behest. The final exercise 
of power was, in most cases, remote from the people. 
The government created by the Constitution 

J . Our Fathers 

was a republic, with many and strong constitu- Made a con- 
tional safeguards against the excesses of de- stitutionai 

=> ° m Republic, 

mocracy. The framers of our Constitution felt notaRepre- 
that the evils from which they were then suffer- _ sentatlve 

J Democracy. 

ing had " their origin in the turbulence and fol- 
lies of democracy, that the people would be the dupes of 
demagogues, and should have very little to do directly with 
the government." 1 They therefore proposed to " refine 
popular power by successive filtrations," as Madison ex- 
pressed it. They would let popular power filter up and 
thereby become purer and safer at the top. The people 
might choose a State Legislature ; the State Legislature 
might choose the National House of Representatives; 
the House might choose the Senate; the Senate might 
elect the President, and the President might appoint the 
Supreme Court, and the latter body, with its important 
functions of interpreting and applying the law, would be 
considered safely enough removed from the people. As 
Mr. Bryce says : 

"The spirit of 1787 was conservative and its constitution 
was the least democratic of democracies." 3 

Popular power — democratic government — was not 
" filtered " so much as the illustration above would indi- 
cate; but the principle of the Constitutional Republic 
with its limitations on popular government is clearly in- 
volved in the Constitution, — as seen in the election of the 
President, the election of the Senate and the appointment 
of the Supreme Court. In the Republic, as distinguished 
from the Democracy, not only are the people constitu- 

1 Randolph, Sherman, and Gerry in the Constitutional Convention of 
1787. 

2 Bryce, American Commonwealth, vol. i., p. 307. 



60 The American Republic 

tionally checked in choosing officers, but they are also so 
checked in the making of laws. It is an error to suppose 
that ours is a government of the mere numerical majority. 
The majority can govern in America only as its power is 
exercised through constitutional channels, and it often 
requires a largely preponderant majority before the ma- 
jority can overcome constitutional checks. 

Our Republic is not a centralized or consolidated re- 
public. France is a Centralized or consolidated Republic, 
but ours is a Federal Republic. A Centralized Republic 
is one in which all governmental powers are centralized 
in one sovereign legislature, with all its people thrown 
into one mass to be governed in all their concerns from a 
common centre. For convenience in administration the 
people in a large centralized republic may be divided into 
departments or provinces or counties, but these subdi- 
visions are subject to the sovereign will exercised at the 
common centre, and they exist for administrative pur- 
poses only ; that is, the divisions exist in order that the 
policies and the law determined upon by the Central Gov- 
ernment may be the more conveniently and certainly 
carried out. 

The Federal Republic is one which is formed by a union 
of republics; it is a combination of republican States. 
This form allows a large and well-defined degree of inde- 
pendence and local self-government to the States, or 
divisions, forming the Federal State. 1 

"It is hardly necessary to enlarge on the merits of local 
government. It stimulates and keeps alive political life in a 
way that central government alone can never do; it trains in- 
dependent politicians for the service of the state; it prevents 
the establishment of that dead level of administrative uni- 
formity which is the ideal of a central bureaucracy ; and it re- 

1 For the merits and demerits of the Federal system, the benefits and 
evils of local self-government, see Bryce, American Commonwealth, vol. i., 
chaps, xxix., xxx. 



The Federal Nation 61 

lieves the central government of an immense amount of routine 
duty, which the latter could not perform satisfactorily." 1 

"Legislation from a distance, applied to masses of men does 
not know how to tolerate variety. ' ' * 

The Federal Republic, and therefore the United States, 
is a composite State, — a composite of the Confederation, 
on the one hand, and the Centralized or purely «.._„. 

7 r J The United 

National Republic, upon the other. While states is a 
ours is a national government, it is not entirely ^J3«S 
national ; and while it is federal, it is not en- National 
tirely federal. It is a complex, federal-national R e P ubhc - 
Republic. In order to understand this complex combi- 
nation, it will be helpful, first, to understand clearly the 
differences between the government of a Confederation 
and the government of a Centralized State, Then, as a 
composite between these two, we may be able to under- 
stand more easily the nature of the Federation, 

When smaller political bodies, or communities, are 
united to form a larger political community, the relation 
of the smaller to the larger is under one of the three 
following forms : 

I. The Confederation, or the League. 2. The Central- 
ized Nation. 3. The Federal Nation, or the Federation. 

The distinction between these forms is made clear in a 
notable passage from Mr. Bryce : 

' ' The Confederation, or the League, is the form of govern- 
ment in which a number of political bodies, be they monarchies 
or republics, are bound together so as to constitute Th 

for certain purposes, and especially purposes of confederation, 
common defence, a single body. The members of or Lea & ue « 
such a body, or league, are not individual men, but commu- 
nities, and will, therefore, vanish as soon as the communities 
which compose it separate themselves from one another. 

1 Edward Jenks, History of Politics \ p. 155. 
9 Maccunn, Ethics of Citizenship, p. 163. 



62 The American Republic 

Moreover, it deals with and acts upon the communities only. 
With the individual citizen it has nothing to do, no right of 
taxing him, or judging him, or making laws for him; for in all 
these matters it is to his own community that the allegiance of 
the citizen is due." 

Such is the Confederation. It is a mere union of States, 
without authority over individuals. If such a govern- 
ment, or central agency for the States, needs money or 
troops, it calls upon the States for the supplies ; it makes 
requisitions, or requests the States to furnish what is 
needed, without authority to compel the grant. The 
States may respond in their own way or refuse to respond. 
Sovereign power, — final, supreme authority — resides in 
the States. Refusal to comply with a requisition may be 
a violation of the compact, or agreement, entered into by 
the States in their adoption of the articles of confedera- 
tion. But if a State refuses to fulfil its obligation there 
is no constitutional remedy. If the other States should 
combine to make war upon the refusing State to coerce 
it into the performance of its obligation, that act would 
be an acknowledgment that the League is dissolved, and 
it would be in the nature of a conquest and would not 
come within the scope of a constitutional confederation. 
Even though the power of coercion were granted to, let 
us say, two thirds of the States, its exercise would result 
in a change of the form of government. 

"But in a National Government," continues Mr. Bryce, 
"which is made up of smaller communities, these smaller 
The communities are mere subdivisions of the Nation. 

National They have been created, or they exist, for adminis- 
Govemment. trat i ve purposes only. Such powers as they possess 
are powers delegated by the Nation and can be overridden by 
its will. The Nation acts directly by its own officers, not 
merely on the communities, but upon every single citizen; 
and the Nation, because it is independent of these communi- 
ties, would continue to exist were they all to disappear." 



The Federal Nation 63 

Clearly this is not a union. It is a state made up of 
component parts, but these parts were not previously 
independent communities, or, if so, they have ceased to 
be. It is merely a simple, unified, centralized nation, as 
France, or Belgium, or Brazil is one. 

"Now," Mr. Bryce goes on to say, "the American Re- 
public corresponds to neither of these two forms, but may be 
said to stand between them. Its Central, or Na- The 

tional, Government is not a mere league, for it Federal 

does not wholly depend upon component communi- 
ties which we call the States. It is made up of common- 
wealths, but it is itself a commonwealth, because it claims 
directly the obedience of every citizen and acts immediately 
upon him through its courts and executive officers. Still less 
are its minor communities, the States, mere subdivisions of the 
Union, mere creatures of the National Government, like the 
counties of England or the departments of France. They 
have over their citizens an authority which is their own, and 
not delegated by the Central Government. They have not 
been called into being by that government. They existed be- 
fore it; they could exist without it. . . . The Union is 
more than an aggregation of States, and the States are more 
than parts of the Union. ' ' * 

This is an excellent description of the Federal Republic, 
or the Federation. Both the Confederation and the 
Federation designate a union of distinct States. But the 
union that forms a Federation creates a new sovereign 
State. It is a Bundesstaat, a state made by a union, not 
merely a Staatenbund, a union made by states; it is a 
banded state, not merely a band of states. In the Fed- 
eration the "several units are legally and constitutionally 
united, and sovereignty — the power of ultimately deter- 
mining its own legal competence — resides in the federal 
body. ' ' 2 This sovereignty is irrevocably deposited with 

1 American Commonwealth, vol. 1., p. 16, et sea. 
s Willoughby, The Theory of the State, p. 253. 



64 The American Republic 

the Federal State, to be exercised through the Federal 
Government. The States may retain a limited inde- 
pendence, constitutionally defined rights, and a well-de- 
fined autonomy in internal affairs, but the Federal State 
not only exercises sovereign powers, it possesses them of 
its own right ; it has received not only the delegation of 
such powers but the surrender of them. 1 Ours is a Fed- 
eral not a Confederate Republic. 9 

1 In contradistinction to Calhoun's position. See speech on the Force 
Bill, Feb. 15, 1833. Johnston's American Orations, vol. 1., p. 312. 

8 " A composite, or Federal State, and a system of confederated States are 
broadly distinguished as follows : In a Federal State, the several united 
societies are one independent society, or are severally subject to one 
sovereign body ; which through its minister, the general government, and 
through its members and ministers, the several united governments, is 
habitually and generally obeyed in each of the united societies and also in 
the larger society arising from the union of all. In a Confederate State, 
the several compacted societies are not one society, and are not subject to 
a common sovereign ; or each of the several societies is an independent 
and political society, and each of their several governments is properly 
sovereign or supreme. Though the aggregate of the several governments 
was the framer of the confederate compact, and may subsequently pass 
resolutions concerning the entire confederacy, neither the terms of that 
compact, nor such subsequent resolutions, are enforced in any of the 
societies by the authority of that aggregate body. To each of the con- 
federated governments these terms and resolutions are merely articles of 
agreement which it spontaneously adopts ; and they owe their legal effect, 
in its own political society, to laws and other commands which it makes or 
fashions upon them, and which, of its own authority, it addresses to its own 
subjects. In short, a system of Confederated States (a Confederation) is 
not essentially different from a number of independent governments con- 
nected by an ordinary alliance. And where independent governments are 
connected by an ordinary alliance, none of the allied governments is sub- 
ject to the allied governments considered as an aggregate body ; though 
each of the allied governments adopts the terms of the alliance, and 
commonly enforces those terms, by laws and commands of its own in its 
own independent community. Indeed a system of Confederated States 
and a number of independent governments connected by an ordinary 
alliance cannot be distinguished precisely through general or abstract 
expressions. The former is intended to be permanent, while the latter 
is intended to be temporary ; while the ends or purposes embraced by the 
compact are commonly more numerous and more complicated than in the 



The Federal Nation 65 

But the term "Federal government," as we have here 
described it, has not always been used in this sense. We 
have denned it as opposed to Confederate. Federaland 
But, in 1787, it was used in contradistinction National 
to National. It then had a different meaning. fotr P Gov- 
It meant then what we now mean by Confed- emment Dis- 
erate. Our Government from 1781 to 1787 
was a confederate government, but it was always called 
Federal. It was a government of States, made by the 
States, operating on the States, or through the States, and 
it could be, as it was, dissolved by the States. Its funds 
were supplied by the States ; its officers were appointed 
by the States, paid by the States, and could be recalled 
by the States. All this was then understood to indicate 
the essence of federation. Those in the Federal Conven- 
tion of 1787, men like Paterson, Martin, Yates, and Dick- 
inson, who wished to continue that kind of a government, 
claimed to be Federalists, friends of a true federal gov- 
ernment ; while those in the Convention, like Randolph, 
Madison, Hamilton, Wilson, King, and others who wished 
to form a new kind of government, one that would draw 
its powers directly from the whole body of the people of 
America and operate directly upon the people without 
the intervention of the States, — these men were called by 
their opponents Nationalists. At that time there were 
no Federal States in the world as now known to political 
science, and as we have defined the federal nation in the 
preceding paragraph. The so-called Federal States of 
that day were, to speak accurately, Confederate States. 
The Federal State is of recent growth, a product really 
of the nineteenth century ; while the confederate form of 
united states has now almost dropped out of use among 

case of the temporary alliance." — Austin's Province of Jurisprudence 
Determined, ed. 1861, pp. 223-224. 

For further discussion of the distinction between the Federal and the 
Confederated State, see Professor Willoughby's able and scholarly work, 
The Nature of the State, pp. 253-258. 



66 The American Republic 

civilized peoples. Therefore when we use the term " fed- 
eral' ' in the following passage we use it as opposed to 
"national," to distinguish between the federal and the 
national aspects of our Government; we use it in the 
sense of 1787, as Madison used it, and as it was under- 
stood in that day. 

Mr. Madison, in No. 39 of the Federalist, has given 
political science one of the best expositions of the com- 
plex, dual character of our Constitution. In order to 
understand more clearly how our Government is a com- 
bination of the federal-national form we should notice 
some of its aspects as discussed by Mr. Madison. 

In explaining our Constitution to the people of Amer- 
ica, when he was pleading for its adoption by them, 
Madison pointed out that the new government 

1. Our . . . . 

Government in its origin was federal, not national. What 

Is Federal in d j d he mean b that ? He mea nt that this 
its Origin. J 

government was to be founded on the assent 
and ratification of the people of America, but this assent 
and ratification were to be given by the people, not as in- 
dividuals, composing one entire nation, but as composing 
the distinct and independent States to which they respec- 
tively belonged. It was to be the assent and ratification 
of the several States, derived from the supreme authority 
in each State. The act, therefore, establishing the Con- 
stitution was federal, not national. It was an act of the 
States. Both in the Convention which made the Consti- 
tution and in its ratification the people voted as States. 1 

1 It is an error to state, as has been done by some writers, on the hypoth- 
esis that a purely national state was created by the American people in 
1789, that the State conventions which adopted the Federal Constitution 
were organs of the Federal Nation. This is purely theoretical and entirely 
unhistorical. Such an idea never occurred to political writers until within 
late years, — until political philosophy came to make a definition of the 
modern Federal State and to prove that the American Republic was in its 
origin of that kind. See Burgess's Political Science and Constitutional 
Law ; Willoughby's Nature of the State. 



The Federal Nation 67 

The new government could result only from the unani- 
mous assent of all the States which became parties to it. 
This is the meaning of federal, as here used. When the 
people act as States in union the act is a federal act; 
when they act as individuals directly through the nation 
it is a national act. The people of the United States en 
masse, as one nation, never had anything to do with, they 
were never called upon to express themselves in, ordain- 
ing and establishing this Constitution. Our Government 
in its origin is federal. It was adopted by States. Not 
by State legislatures, or State governments, but by the 
people directly, though organized in States and acting as 
States. 

But if in its origin the United States Government is 
seen to be purely federal, in the sources from which it de- 
rives its power it will be seen to be partly fed- 2 In the 
eral and partly national. sources of its 

The House of Representatives derives its Government 
powers from the people of America directly, is complex, 
That is, it is constituted by direct representa- Federal 
tion of the people and is appointed to act for partly 

1 1 1- ' -t 1 r -r-i National. 

them by direct delegation of power. The 
people are represented there on the same principle and 
in the same proportion, usually, as they are represented 
in the legislature of one of the States. So far the Gov- 
ernment is national not federal. 

But the Senate is based on the States as political and 
co-equal societies. The States are represented on the 
principle of equality in the Senate. In this respect the 
Government is federal, not national. 

The executive power is derived from a compound 
source. The immediate election of the President is made 
by the States in their political characters. But the allot- 
ment of votes to the States considers them partly as dis- 
tinct and co-equal societies, partly as unequal members 
of the same society. To begin with, in allotting electoral 



68 The American Republic 

votes, two votes are given to each State. Statehood is 
recognized to this extent, and so far the source of power 
in electing the President is federal. But in a presidential 
election the States are also considered as unequal mem- 
bers of the same society. That is, votes in the electoral 
college are allotted to them, after two are allotted to 
each, in proportion to population. So far the source of 
executive power is national, not federal. The eventual 
election, that is, the election in the last resort, is to be 
made by that branch of the National Legislature which is 
national in its character; but in this particular act the 
voting is to be by States; the members do not vote as 
individual members of the House, but they are thrown 
into the form of State delegations from so many distinct 
and equal bodies politic. Each delegation, or State, has 
one vote, Rhode Island or Delaware counting for as much 
as Illinois or Ohio. The act of final election, though 
performed by a national body, is purely federal. The 
election is federal — made by States — on a national basis 
of representation. Thus it will be seen that in the source 
of executive power the Government is mixed in character, 
being partly federal and partly national. 

But how about the operation of the Government ? 
A federal government operates on the political bodies 
3. our composing the confederation. 1 A national gov- 

Govemment ernment operates on the individual citizens com- 
in the posing the nation, in their individual capacities, 

operation of By this criterion our Government is national, 

its Powers. y _ _ , , 

not federal. It operates on and controls the 
individual directly. a It was upon this quality of its nature 
and existence that the National Government, in 1861, 

1 It may be well to remind the reader that federal is here used, not as de- 
fined by modern political science, but as understood in 1787, — in the sense 
of our term confederate. 

3 The trial of controversies to which the States may be parties is an ex- 
ception to this. 



The Federal Nation 69 

proceeded in the war for the Union. In 1861, the ques- 
tion was not whether the National Government could 
coerce the States. It proceeded to coerce, not 

, ,-, , .,..,,.. . T The War for 

the States, but individuals in insurrection. It the union 
used its direct powers, derived from the people, Was • 

to be used over people in resistance. The war individuals, 
for the Union was a war of the nation against notofstates - 
those resisting national authority ; it was not a war be- 
tween the States. The people of some of the States were 
using their State organizations to resist the national 
supremacy; but the national authority disregarded the 
States and proceeded against the individuals directly. 
The authority of the National Government over the citi- 
zens of every State is immediate and direct. The co- 
operation of the State government is not required for the 
execution or operation of national powers. The nation 
operates of its own right over its own citizens. The 
Constitution expects certain services of the States. The 
States are expected to choose Senators, Representatives, 
and Presidential Electors; to arm and equip its militia, 
to maintain a republican form of government, but the 
National Government would continue to perform its func- 
tions even though the States refused or neglected to do 
these things. The National Government does not operate 
through States. 1 It does not call on the States for 
funds, nor issue orders to the States in order to have its 
laws and commands executed, nor does it require the 
State to submit its laws to national authority for in- 
spection and approval. To the extent to which the 
National Government has a right to exercise authority 
over individuals it operates as a national, not as a federal 
government. 

1 Of course if the people of all the States should refuse to continue the 
Government by refusing to elect representatives to carry it on, the National 
Government would be suspended. But the law of the Constitution is as 
stated above. 



70 The American Republic 

While we may say that our Government is national in 
the operation of its powers, what shall we say when we 
4 . m the Ex- look to the extent of its powers? To what 
tent of its extent is our Government the government of 
GoreVnment a national State with truly sovereign powers? 
is partly Around this question has raged the great con- 

National, . , . 

partly troversy in our history. 

Federal. T\iz idea of a National Government without 

limit to its powers involves not only an authority over 
the individual citizens, but an indefinite supremacy over 
all persons and things, so far as they are objects of law- 
ful government. Among a people consolidated into one 
nation this supremacy is completely vested in the National 
Legislature. We have no such National Government as 
that. Among communities united for particular pur- 
poses, defined by the Constitution of the Union, this 
supremacy is vested partly in the general and partly in 
the local legislatures. In the consolidated nation all 
local authorities are subordinate to the supreme, and 
may be controlled, directed, or abolished by it at pleas- 
ure. In our Federal State, or Union, the local authorities 
form distinct and independent portions of the supremacy, 
no more subject within their respective spheres to the 
general authority than the general authority is subject to 
them within its own sphere. It is the Constitution that 
defines these respective spheres, and limits, or assigns, 
the powers to each. 

In this aspect our Government cannot be said to be 
national. That is, it is not fully national, like the gov- 
ernment of a unified, consolidated nation. To an extent, 
it can exercise governmental powers like any nation ; to 
an extent it cannot exercise such powers, but as to these 
powers it is purely federal. Its governmental scope, or 
jurisdiction, extends to certain enumerated objects only, 
and leaves to the several States a residuary and inviolable 
mass of powers over all other objects. 



The Federal Nation 71 

To understand this more clearly and fully, distinction 
should be made between sovereignty and supremacy, as 
these terms are frequently used in discussing our Distinction 
Government. In certain respects supremacy between 

11 111 • 1 -».t Sovereignty 

is allowed by the sovereign power to the Na- and 

tional Government ; in certain other respects Su P remac y- 
this supremacy is allowed to the State governments. 
Sovereignty was not retained in the States, but a mass of 
powers were allotted by the sovereign national people to 
be exercised by the States, and while this allotment con- 
tinues the States are supreme as to these powers. The 
sovereign power resides in the people of the United States 
organized into States. This sovereignty was exercised, 
or came into being, in 1787, through the then Confederate 
Congress and the State conventions, in the adoption of 
the Constitution. It may be exercised again in amending 
this Constitution, or in making a new one, either through 
a national convention, properly called, representing all 
the States, or through the Federal Congress and the State 
legislatures, as prescribed by the Constitution. In the 
exercise of this sovereignty in 1787-88, the people dele- 
gated certain powers to the National Government and re- 
tained certain powers in the States. Neither the National 
Government nor the State government is sovereign in any 
particular. The nation only is sovereign ; but it is the 
nation that is sovereign, not the National Government. 
The National Government and the States, through the 
State governments, exercise particular powers of sover- 
eignty, permitted by the sovereign power. Sovereignty 
is unlimited power over the members of the State and all 
associations of its members. It cannot be divided. It 
is impossible to have two sovereign authorities within 
the State. But the sovereign authority may divide the 
exercise of sovereign powers. It may delegate certain 
supreme powers to one government and certain other 
powers to another. Our governments, both State and 



72 The American Republic 

National, are limited, not sovereign, and there is a rela- 
tion between them. But the power of the people of the 
United States to alter these governments to suit them- 
selves, to redistribute the powers that they now possess, 
is unlimited and absolute ; that is, it is sovereign. The 
organs through which this sovereignty is expressed, or 
through which this sovereign power is exercised, are the 
State and National governments, or it might be the 
National Convention. 

Historically, then, the sovereign people of the United 
States, acting through the States, created a Constitution. 
By the Constitution they erected, or recognized, two 
governments, Federal and State. To both of these two 
governments they gave supreme powers, the one govern- 
ment to be supreme in certain respects, the other in others. 
Hamilton explained it in this way : 

' ' That two supreme powers cannot act together is false. 
They are inconsistent only when they are aimed at each other, 
or at one indivisible object. The laws of the United States 
are supreme as to all their proper constitutional objects; the 
laws of the State are supreme in the same way. These su- 
preme laws may act on different objects without clashing; or 
they may operate on different parts of the same common ob- 
ject with perfect harmony. The meaning of the maxim that 
there cannot be two supremes is simply this, — two powers can- 
not be supreme over each other." ' 

Webster speaks to the same effect. In replying to 
Hayne upon the respective powers of the State and Fed- 
eral governments, Webster says : 

" We are all agents of the same supreme power, the people. 
The General Government and the State government derive 
their authority from the same source. Neither can in relation 
to the other be called primary, though one is definite and re- 

1 Hamilton on the Constitution in the New York Convention, June 27, 
1788. See Johnston's Representative American Orations, vol. i., p. 50. 



The Federal Nation 73 

stricted and the other is general and residuary. The National 
Government possesses those powers which it can be shown the 
people have conferred upon it, and no more. All the rest 
belong to the State governments, or to the people themselves." 

To determine the extent of the national jurisdiction 
was the purpose of the long historic controversy between 
the advocates of national power and the advocates of 
States' rights. One cannot fully understand the nature 
of our form of government unless he knows, in a measure, 
the character of that contention and its outcome. The 
contention involved two questions : 

1. What was the nature of the Union under the Con- 
stitution as to the relation between the States and the 
Nation? 

If that question was not answered by the Constitution 
itself, in the first place, it has been answered by our his- 
tory since. It is now at rest. It is answered in the de- 
scription we have given of our country as a federal nation. 
The Union is no longer to be looked upon as a league. 
It is not a compact between the States, dissoluble at 
pleasure. It is a nation, one and indivisible. But this 
does not imply the loss of distinct existence and the right 
of self-government by the States. "The preservation of 
the States and the maintenance of their governments are 
as much within the design and care of the Constitution 
as the preservation of the Union and the maintenance of 
the National Government. The Constitution in all its 
provisions looks to an indestructible union of indestruc- 
tible States." 1 

2. Accompanying this question was a second, — What 
were the limits to the powers of each government? 

Two historic views were set forth in answer to this 
question. It was properly a matter for judicial constitu- 
tional construction. But it became the basis of division 

J Supreme Court in the case of Texas vs. White, 7 Wall 700. See also p. 
323, Bryce, vol. i. 



74 The American Republic 

between contending parties in their conflicting views of 
the Constitution. Each party emphasized one side of 
the truth, and it is our purpose to notice to what extent 
our history and our accepted constitutional interpretation 
have reconciled the two. One view was set forth by 
Jefferson. This great leader taught, quite rightly, that 
our Government is a government of limited powers, and 
that those limits are determined, not by the National 
Government itself, but by the Constitution. He said : 

" I consider the foundations of the Constitution as laid on 
this ground. All powers not delegated to the United States 
by the Constitution, nor prohibited by it to the States are re- 
served to the States or to the people. 1 To take a single step 
beyond the boundaries thus specifically drawn around the 
powers of Congress is to take possession of a boundless field 
of power no longer susceptible of any definition. Congress 
was not given power to provide for the general welfare, but only 
to lay taxes for that purpose. To consider the 'general wel- 
fare ' phrase as giving a distinct and independent power to do 
any act they please which might be for the good of the Union 
would render all the preceding and subsequent enumeration 
of powers completely useless. It would reduce the whole in- 
strument to a single phrase, that of instituting a Congress with 
power to do whatever would be, in its judgment, for the good 
of the United States. 2 

"The government created by the Constitution was not made 
the exclusive, or final, judge of the extent of the powers dele- 
gated to itself; since that would have made its discretion and 
not the Constitution, the measure of its powers. The con- 
struction applied by the General Government to that part of 
the Constitution which delegates to Congress a power to make 
all laws that shall be necessary and proper for carrying into 
execution the powers 3 vested by the Constitution in the Gov- 

1 Tenth Amendment to the Constitution. 

2 Jefferson's Opinion on the Constitutionality of the First United States 
Bank, Writings of Jefferson, Ford's ed., vol. v., p. 284. 

3 This is the well-known expression of the ' ' sweeping clause " of the 



The Federal Nation 75 

eminent of the United States, or any department thereof, goes 
to the destruction of all the limits prescribed to their power 
by the Constitution. Words meant to be subsidiary to the execu- 
tion of limited powers ought not to be so construed as to give un- 
limited powers, nor a part so to be taken as to destroy the whole 
residue of the instrument. ' ' 1 

Jefferson held that the very fact that some powers were 
specifically granted must be taken to mean that those not 
so specified were withheld, according to the old maxim : 
"As exceptions strengthen the force of a law in cases 
not excepted, so enumeration weakens it in cases not 
enumerated." 

Such was Jefferson's famous statement of the doctrine 
of the strict construction of the Constitution. It will be 
seen from the outcome, as we notice the conclusions of 
our history and the interpretations of the Supreme Court, 
that the doctrine is sound and unquestionable to the ex- 
tent that it teaches that our National Government is 
limited and not sovereign and plenary in its powers, and 
that the Constitution and not its own discretion defines 
those limits. 

But it was Hamilton's office to teach, by his doctrine 
of broad, or liberal, construction, that our Government ^ 
is a government of implied powers ; that our Hamilton 
Constitution may be so construed as to give Con a s ° ruc ^. 
broader, larger, and more numerous powers our Govern- 
than Jefferson would permit. In the same f implied 
controversy that brought out the expression Powers, 
from Jefferson, Hamilton said : 

" There are express and implied powers, and the latter are 
as effectually delegated as the former. There is also another 

Constitution, — supposed to sweep in all other necessary powers not dele- 
gated to Congress. It closes (is " subsidiary to") the list of powers con- 
ferred on Congress. Art. I., Sec. 8, of the Constitution. 
1 Jefferson's Kentucky Resolutions, Arts. I. and VII- 



76 The American Republic 

class of powers which may be called resulting powers — resulting 
from the whole mass of the power of the government and from 
the nature of political society rather than as a consequence of 
any especially enumerated power. For example, in the con- 
quest of territory the United States would have sovereign 
jurisdiction of it. Thus a power not specifically enumerated 
may result from, or be implied in, some or all of the powers 
vested in the National Government. The only question, then, 
is this : Has the means to be employed any natural relation to 
any of the acknowledged, lawful ends of the government? The 
test of constitutionality lies in the end sought. Is the end in- 
cluded in the expressed powers? If it is so included the means 
requisite and fairly applicable are constitutional. It is an 
axiom inherent in the idea of government that a power vested 
includes by the force of the term the means requisite and 
fairly applicable to the end sought. 

"The powers of the Federal Government are sovereign. 
This includes by force of the term the right to employ all 
means not precluded by the restrictions of the Constitution, or 
not immoral, or contrary to the essential ends of the political 
society. ... A Corporation may not be created by the 
United States for superintending the police of the city of 
Philadelphia, because the United States are not authorized to 
regulate the police of that city. But one may be erected in 
relation to the collection of taxes, or to the trade between the 
States, or with the Indian tribes ; because it is the province of 
the Federal Government to regulate those objects, and because 
it is incident to a general sovereign, or legislative, power of 
regulating a thing, to employ all the means which relate to its 
regulation to the best and greatest advantage. . . . The 
degree in which a measure is necessary can never be a test of 
the legal right to adopt it ; that must be a matter of opinion, 
and can only be a test of expediency. The relation between the 
measure and the end, — between the nature of the means em- 
ployed toward the execution of a power and the object of that 
power, — must be the criterion, not the more or less necessity 
or utility." 1 

1 Hamilton's Works, vol. iii., pp. 181-189, Lodge ed. 



The Federal Nation 77 

These two constitutional doctrines, the one, emphasized 
by Jefferson, that our Government is one of limited 
powers, the other, emphasized by Hamilton, that it is a 
government of implied powers, are recognized and com- 
bined by one of the notable decisions of ,the Supreme 
Court rendered by the great Chief Justice Marshall: 

" This government is acknowledged by all to be one of 
enumerated powers. The principle that it can exercise only 
the powers granted to it is now universally admitted. 
But the question respecting the extent of the pow- Recognizes 
ers actually granted is perpetually arising and will both Limited 
probably continue to arise as long as our system and 

shall exist. . . . The powers of the Govern- Broad 

ment are limited and its powers are not to be onstruc lon * 
transcended. But the sound construction of the Constitution 
must allow to the national legislature that discretion with re- 
spect to the means by which the powers it confers are to be 
carried into execution, which will enable that body to perform 
the high duties assigned to it in a manner most beneficial to 
the people. Let the end be legitimate, let it be within the 
scope of the Constitution, and all means which are appropriate, 
which are plainly adapted to that end, and which are not pro- 
hibited but are consistent with the letter and spirit of the Con- 
stitution, are constitutional." ' 

The doctrine of implied powers is now well established 
and needs no further illustration or explanation. The 
growth of power to the General Government by implica- 
tion and interpretation is a well-known and distinguished 
part of our national history. But the limitations on 
power imposed by the National Constitution deserves 
further notice, since these limitations aid us the better to 
understand the relation between the States and the Fed- 
eral Government. 

It is quite a common error to suppose that the general 

1 Marshall in the case of McCulloch vs. Maryland, 1819. 



78 The American Republic 

restrictions of the United States Constitution apply to 

the several States, and that by these general restrictions 

and prohibitions the States are restrained in 

Limitations . . TT . t 

of Powers: their governmental acts. Ine United States 
The Restric- Constitution says, for instance, that "no person 

tionsofthe J ' ... 

constitution shall be held to answer for a capital crime un- 
Are Restric ^q SS on indictment of a grand jury " ; that "in 

tionsonthe & . 

General suits at common law the right of trial by jury 

Government shaU be preserved " . that no one shall "be 

subject for the same offence to be twice put in jeopardy 
of life or limb." But it is not always understood that 
these and other provisions of the "Bill of Rights " apply 
only to the General Government ; they do not limit or 
restrain the States. If a State, through its own consti- 
tution, should abolish the right of trial by jury, or deny 
the right of its citizens to claim just compensation for 
private property condemned for public uses, neither the 
National Constitution, nor the national law by the in- 
terpretation of its courts, would be brought to bear to 
prevent. Unless the States are specifically 

Unless the r . ...... • T i , 

states are mentioned, the limitations imposed by the 
specifically Umted States Constitution are imposed on the 

Mentioned. x 

National Government only, not on the States. 
The United States were forbidden to deprive any per- 
son of any of the privileges guaranteed in the "Bill of 
Rights." The States might, in respect to their own in- 
habitants, infringe them all. If the States do not infringe 
upon expressed provisions of the Constitution especially 
addressed to them, or upon those implied in the whole 
scope of that instrument and in the grants of power to 
the General Government, they might regulate their own 
internal economy as seemed best to themselves. This 
is brought out in a notable decision by Chief Justice 
Marshall : 

11 The Constitution was ordained and established by the 



The Federal Nation 79 

people of the United States for themselves, for their own gov- 
ernment, and not for the government of the individual States. 
Each State established a constitution for itself, and «„„.«„ .,* 

' Barron vs. 

in that constitution provided such limitations and Baltimore, 
restrictions on the powers of its particular govern- The ^^^ 
ment as its judgment dictated. The people of Decides 

the United States framed such a government for that General 

Limitations 

the United States as they supposed best adapted do not Limit 
for their situation, and best calculated to promote the stat es. 
their interest. The powers to be conferred on this government 
were to be exercised by itself; and the limitations on power, 
if expressed in general terms, are naturally, and we think 
necessarily, applicable to the government created by this 
instrument." 1 

In this case Barron was pleading before the Court that 
the Fifth Amendment to the United States Constitution, 
forbidding the taking of private property for public use 
without compensation, ought to be so construed as to 
restrain the legislative power of a State as well as that 
of the United States ; but the Court denied his plea. 

This is a part of our Constitution so commonly mis- 
understood and of such importance that it needs to be 
further amplified. The Constitution of the United 
States was adopted in 1787 and 1788 to form a better 
government than that of the old Confederation. The 
government created by it was the National Government, 
not the State governments. The States were already pro- 
vided with constitutions and governments of their own. 
These constitutions generally contained provisions secur- 
ing to their people the rights guaranteed in the amend- 
ments subsequently incorporated in the United States 
Constitution, and known as the "Bill of Rights." These 
amendments were incorporated in the United States Con- 
stitution as a guarantee that the new government would 
not infringe upon these rights that had already been 

1 Barron vs. Baltimore, 1833, 7 Peters, 243. 



80 The American Republic 

guaranteed in the written constitutions of the respective 
States. It was to the States the people looked for these 
guarantees. But they wished to make assurance doubly 
sure, and they therefore also limited the new National 
Government in these directions. The new Constitution 
was a written instrument intended to serve as a funda- 
mental law for the new government which it created; 
and therefore it was to that government, and to it alone 
(unless otherwise expressly stated), that all of its pro- 
visions and restrictions apply. Its limitations, therefore, 
rest only on the Federal Government. For example, 
"No bill of attainder or ex post facto law shall be 
passed.' ' ' This prohibits the General Government, but 
not the States, from passing such enactments. To pro- 
hibit the States from passing such measures it was neces- 
sary that the Constitution should say in addition, as was 
done in the next section: "No State shall pass a bill of 
attainder or ex post facto law." 2 The rule of construc- 
tion is thus summarized by one of the greatest of Ameri- 
can jurists : 

' ' To state the rule of construction concisely it is this : The 
restrictions imposed upon government by the Constitution and 
its amendments are to be understood as restrictions upon the 
government of the Union except where the States are expressly 
mentioned. ' ' 3 

This Federal System, a Nation made by a union of 
States, provides for a distribution of powers between the 
two governments, State and National. The constitu- 
tional powers to be exercised in America are classified 
according to this distribution. The classification is as 
follows : 

1 Constitution, Art. I., Sec. 9, CI. 3. * Ibid., Sec. io, CI. I. 

3 Hon. Thomas M. Cooley, Constitutional Law, p. 19. 



The Federal Nation 81 

i. Powers vested in the National Government alone. 

2. Powers vested in the State governments alone. 

3. Concurrent powers, or those that may be ex- classification 
ercised by either State or National Government. of Powers. 

4. Powers forbidden to the National Government. 

5. Powers forbidden to the States. 

6. Powers forbidden to both governments. 

1. The first class of powers are general in their charac- 
ter, such as touch the interest of all the people. In early- 
days the Central Government was looked upon 

1. Powers 

merely as a "department for foreign affairs/' conferred on 
The States were to be left free to regulate all the central 

Government. 

their domestic concerns for themselves. Those 
things that the whole people can attend to for all the 
parts better than any part can attend to for itself are 
turned over to the National Government. These are : (a) 
foreign relations, (b) the regulation of commerce with 
foreign countries and among the States, (c) the making 
of peace and war, and the general defence for which an 
army and navy may be needed, (d) coining money and 
the regulation of the currency and of weights and meas- 
ures, (e) the management of the post-office, (f) the regu- 
lations concerning naturalization and bankruptcy, (g) the 
governmental machinery for the departments charged 
with these purposes. 

2. The powers vested in the States alone are not named 
in the Constitution. It is not necessary nor possible that 
they should be; because, as we have seen in 
considering the limitations on State and Na- vested in 
tional power imposed by the Constitution, the the states 
States may do all things from which they are 

not prohibited by that instrument. In conferring the 
general powers upon the National Government the people 
reserved all other powers to the States, — barring those 
specifically excepted. All unmentioned governmental 
powers rest where they rested before the adoption of the 



82 The American Republic 

Constitution, that is, in the States. The powers of the 
States are original and inherent. Those of the National 
Government are delegated, — that is, they are 
of the state* enumerated in and defined by the Constitution 
Are original creating the Union. The powers of the State 
those of the 'belonged to it before it entered the Union. It is 
National clear that this is historically true of the original 

Government . . . 

are Dele- thirteen States; and since this is a Union of 
gated and e q ua l States, then from the constitutional point 

Enumerated. ^ 111 

of view this must also be held to be true of the 
later States, even though, as an historical fact, as Terri- 
tories before becoming States of the Union they exercised 
no powers of government except what were conferred upon 
them by the National Government. The powers of the 
State, then, embrace all that "residuary mass of powers " 
not recited in the Constitution either as belonging to the 
National Government or as prohibited to the States. If 
there is a question as to whether a State can exercise a 
power, the presumption is that it can, unless it can be 
shown to have been taken away by the Constitution. 
This preserves local self-government to the people. 

3. Concurrent Powers are those that may be exercised 
by both the State and the National Government. It does 
3. concurrent not follow because a power has been conferred 
Powers. upon the National Government that it may not 
also be exercised by the State governments. There are 
powers that from their very nature both governments 
must be left to exercise, such as the power of taxation, 
the promotion of learning, and the encouragement of arts 
and manufactures. On such subjects two legislative wills 
may act at the same time over the same persons. The 
exercise of such powers as are essential to the maintenance 
of a government, such as the taxing power and the direct 
control of the citizen through the operation of the courts, 
must be left to either government. Certain limitations 
on the taxing power are imposed on both governments. 



The Federal Nation 83 

Neither government can tax exports from any State. 1 
And since "the power to tax involves the power to de- 
troy," 9 no State, except by the consent of Congress, may 
tax any corporation or other agency created for Federal 
purposes, or any act done under Federal authority ; nor 
shall the National Government tax any State, its agency, 
or its property. Neither government, by the use of the 
taxing power, shall be able to destroy, or prevent the 
effective operation of, the other. In cases of conflict of 
authority as to objects of taxation the national authority 
must prevail and its claims must be satisfied first, though 
in taxation it is not expected that one power will exclude 
the operation of the other. 

There are other powers that are concurrent, not from 
their nature, but because they are specified as such in the 
Constitution, — subjects like bankruptcy or matters relat- 
ing to the election of Senators and Representatives. But 
if Congress acts on these subjects the State laws relating 
to them must give way. "It is not the mere ^ „ 

& J The Exercise 

existence of a national power, but its exercise, of a National 
which is incompatible with the exercise of the Ex ci°Jdes 
same power by the States." 3 The Constitu- Legislation 
tion says: "Congress shall have power to es- by the states * 
tablish uniform laws on the subject of bankruptcies." 4 
Congress is permitted but is not commanded by the Con- 
stitution to exercise such power. If it does not exercise 
the power, any State may pass its own bankrupt laws; 
but if Congress chooses to exercise this power its act 
excludes all others : that is, all State acts of bankruptcy 
fall. State legislation takes effect only in the absence of 
Federal legislation. 

4. The fourth class of powers, those forbidden to the 

Constitution, Art. I., Sees. 9 and 10. 

'Supreme Court, McCulloch vs. Maryland, 1819. 

3 Cooley, Constitutional Law, p. 35 ; Sturgis vs. Crowninshield. 

4 Art. I., Sec. 8, CI. 4. 



84 The American Republic 

National Government, are, for the most part, included 
in the first ten amendments. 1 The chief of these, not also 
forbidden to the States, are as follows : 

4. Prohibi- 
tions on 

Government. { a ) The writ of habeas corpus shall not be sus- 
pended except when the public safety may require it. 

(b) No capitation or direct tax shall be laid, except in pro- 
portion to the population. 

(c) In commercial regulations no preference shall be given 
to the ports of one State over those of another. 

(d) No money shall be drawn from the public treasury but 
in consequence of appropriations made by law. 

(e) No law shall be passed establishing or prohibiting any 
religion, or abridging freedom of speech or of the press, or of 
public meeting or of bearing arms. 

(/) No religious test shall be required as a qualification for 
any office under the United States. 

(g) No person shall be tried for a capital or otherwise in- 
famous crime unless on a presentment or indictment of a 
Grand Jury, except in a military or naval service; nor shall 
any person be subject for the same offence to be twice put in 
jeopardy of life or limb ; nor shall any one be compelled in 
any criminal case to be a witness against himself, nor be de- 
prived of life, liberty, or property without due process of law ; 
nor shall private property be taken for public use without just 
compensation. 

(h) In all criminal prosecutions the right of trial by jury in 
the district wherein the crime shall have been committed shall 
not be denied the accused, who shall be informed of the nature 
and cause of the accusation, be confronted by the witnesses 
against him, and have compulsory process for obtaining wit- 
nesses in his favor, and have assistance of counsel for his 
defence. 

it) In suits at common law where the value in controversy 
shall exceed twenty dollars, the right of trial by jury shall be 
preserved, and no fact tried by a jury shall be otherwise re- 

1 See also Art. I., Sec. 9, of the Constitution. 



The Federal Nation 85 

examined in any court of the United States than according to 
the rules of the common law. 

(/) Excessive bail shall not be required, nor excessive fines 
imposed, nor cruel and unusual punishments inflicted. 

5. The fifth class of powers, those prohibited to the 
States, may be briefly recited J : Powers 

Prohibited to 

(a) No State shall make any treaty or alliance ; the states - 
nor coin money ; nor make anything but gold and silver a legal 
tender; nor pass a law impairing the obligation of contracts. 

(b) No State shall, without the consent of Congress, lay 
duties on exports or imports ; nor keep troops or ships of war 
in time of peace ; nor engage in war unless actually invaded or 
in imminent danger. 

(c) No State shall deny credit to the records and judicial 
proceedings of the other States; nor deny the privileges and 
immunities of its citizens to the citizens of other States; nor 
establish any but a republican form of government ; nor main- 
tain slavery; nor abridge the privilege of any citizen of the 
United States or deny to him the right of voting on account of 
race, color, or previous condition of servitude; nor deprive 
any person of life, liberty, or property without due process of 
law, nor deny to any person the equal protection of the law. 

6. There are also certain powers that are prohibited 
both to the State and the National Government. Neither 
can grant a title of nobility, nor pass an ex post 6 . PoW ers 
facto law or a bill of attainder; nor deprive Prohibited 

-;.-'•« .1 both to the 

any person of life, liberty, or property without state and 
due process of law. 2 The people have forbidden the Nation - 
any governmental agency in America the right to do these 
things. As Mr. Bryce expresses it, "There are things in 
America which there exists no organized and permanent 

1 See the Constitution, Art. I., Sec. 10. 

8 Fourteenth Amendment. This was adopted since the decision in the 
case of Barron vs. Baltimore, referred to on p. 79. The student should 
refer in this connection to the passages on pp. 356 <?/ seq. 



86 The American Republic 

authority capable of legally doing; not a State, because 
it is expressly forbidden ; not the National Government, 
because it either has not received the competence or has 
been expressly forbidden." 1 

But this passage from Mr. Bryce, and the conception 
that our Government is one of enumerated powers only, 
and that it can do only what it has "received compe- 
tence " to do by a grant of powers that are expressed or 
implied in an enumerated list, — this description does not 
fully explain the character of our National Government. 
It is true that so far as express prohibitions are con- 
cerned, the people have reserved certain powers to them- 
selves to be exercised only through subsequent grants of 
power by amendments. But it has been found imprac- 
ticable, if not impossible, to confine the National Govern- 
ment to a list of recited and implied powers. The written 
Constitution so intends and provides. But as a matter 
of fact the National Government is more than 
Government a government of delegated powers : it has as- 
Has original sum ed power to do other than those things that 

and Inherent , 

Powers for have been enumerated. There is a sense in 
National! w hich the National Government must be re- 
garded as one of original and inherent powers, 
— powers that come to it from the nature of government, 
from necessity and usage in government ; and also from the 
law of the unwritten constitution. Hamilton called these 
Resulting resulting powers. Implied pozvers are drawn 
powers. from specific and express grants of power. 
Congress has power to coin money and to regulate com- 
merce; therefore Congress may establish a mint, build 
lighthouses, and improve harbors. These powers are 
implied necessarily in those that are granted. But result- 
ing powers come from the very character of the National 
Government itself and from the functions it has to per- 
form, — from the whole scope and nature of the Consti- 

1 Bryce, vol. i., p. 315. 



The Federal Nation 87 

tution. The National Government cannot be, under the 
Constitution, a government of unlimited powers; but 
every power essential to the life and processes of a nation 
must be conceded to it. It must be allowed to perform 
every national governmental function which any national 
sovereign government can perform, from which it is not 
restrained by the restrictions of the Constitution. 1 

" For it would be impossible to construct a government no 
branch of which can exercise a necessary power unless it has 
been granted. . . . Whatever the written Constitution 
may provide on this question, the fact is that the United 
States Government does exercise powers which are not dele- 
gated to it by the written Constitution. The attempt [to 
interpret constitutional law as strictly limiting the National 
Government to enumerated powers] has resulted in the assump- 
tion by Congress of powers which were not expressly delegated 
nor fairly implied. ' ' 2 

The extent to which such necessary and natural powers 
may be exercised by the National Government has been, 
as is well known, a subject of great discussion. The as- 
sumption of such powers has been resisted as unconsti- 
tutional usurpation ; but, as a matter of fact, larger and 
larger powers of this kind have been established by usage, 
from time to time, and have come to be accepted as legal. 
From the point of view of constitutional government such 
employment of original and inherent powers is to be 
looked upon as the substitution of an unwritten for a 
written constitution, or as an advance, so far, in the de- 
velopment of our unwritten constitution by interpreta- 
tion and usage. 3 

1 Even the expressed prohibitions of the Constitution do not restrain the 
National Government from the exercise of sovereign national powers, ac- 
cording to the late Insular decision. But it may be questioned whether 
this is accepted as permanent constitutional law. 

2 Tiedeman, The Umuritten Constitution of the United States, p. 139. 

3 Professor Tiedeman mentions, as cases illustrating the employment of 



88 The American Republic 

This distribution of powers and the limitations on the 
National Government will enable us to understand how, 
in comparing the British Parliament with the American 

original rather than delegated powers, the Louisiana Purchase and the 
Legal Tender laws. These laws were not delegated nor fairly implied. 
They were exercised and allowed because the National Government was a 
government, and, as such, it was in possession of sovereign and original 
powers touching these subjects. The late decision in the Insular Cases is 
a still more forcible illustration. (See p. 385.) The question here raised, as 
to the exercise by the National Government of original and unenumerated 
powers, is made clear in the following diagram from Professor Tiedeman : 




The whole circle represents the sum total of governmental powers ; 
circle A, powers delegated to the United States ; circle B, powers reserved 
to the States ; segment C, concurrent powers ; segment D, powers pro- 
hibited to both governments ; segment E, powers prohibited to the States, 
but neither prohibited nor delegated to the United States. 

The question for discussion is whether the U. S. Government may exer- 
cise a power which is prohibited to the States, but which is neither pro- 
hibited nor delegated to the General Government, that is, the powers 
represented in E.— Tiedeman, The Unwritten Constitution, p. 138. 



The Federal Nation 89 

Congress, the government of Parliament may be said to 
be sovereign and constituent while the government of 
Congress is not. In contradistinction, the gov- Parliament 
ernment of Congress is limited and representa- Is s ° verei g n 

r and Constitu- 

tive. In law, Parliament is the nation. Its ent ; congress 
powers represent the sum total of governmental ^^^ 
powers. There is no political power above it sentative. 
competent to restrain or overrule it ; there is no sphere or 
field of government in which it may not operate, no act 
of government which it may not perform. Congressmen 
represent the people ; but Parliament is the people. Con- 
gress is the agent ; Parliament is the principal. Congress- 
men have constituents separate from and above them ; 
but, in law, Parliament holds within itself the constituent 
parts of the nation. Since the constituent elements of 
the nation are in Parliament, whatever the nation can do 
in its sovereign capacity the Parliament can do. It is 
not restrained by a constitution, because its acts make up 
the Constitution, and the courts accept and act in har- 
mony with any act passed by Parliament. 1 "Parliament 
is the British nation for every purpose. Congress is the 
American nation only for the purpose of exercising the 
powers delegated in the Constitution. " 2 For example, in 
1 7 16, the English Parliament, which had been elected for 
a term of three years, passed the Septennial Act, by which 
the members prolonged their own terms to seven years. 
This act was denounced as "unconstitutional"; but it 
was unconstitutional only in the sense of being unusual 
and unprecedented, — such a thing had never been done 
before. The Septennial Act, however, was perfectly 
valid ; it was accepted by the courts and it has ever since 
held as law. Whatever Parliament does is constitutional. 
But imagine members of Congress, having been elected 
for the constitutional term of two years, attempting by 
their own act, a law of Congress, to extend their term to 

1 See p. 95. 2 C. F. Randolph, Law and Policy of Annexation, p. 45. 



90 The American Republic 

five or seven years! Such an act, of course, would 
transcend the powers of Congress ; it would be immedi- 
ately declared illegal by the courts, and any attempt by 
Congress or its agents to execute such a measure would 
be regarded as usurpation and revolution. The body in 
America that would be competent to do such a thing, 
that would be sovereign and constituent and, therefore, 
competent to act for America as Parliament acts for Great 
Britain, would be the Constitutional Convention of all the 
States and the ratifying conventions of three fourths of 
the States. This body would be the nation, the body 
competent to make and amend constitutions. 

On the other hand, Congress is limited by the Consti- 
tution and by the division of powers for which the Con- 
stitution provides. Congress can do only what the 
Constitution allows and act only in the sphere assigned 
to it. It is limited by the powers and prerogatives of the 
President, and it may be restrained, also, by the decisions 
of the Supreme Court. It is representative in the sense 
that it must act as an agent, not as a principal ; and as an 
agent it is responsible to its constituents, the sovereign, 
who have given to Congress definite written instructions 
as to what it may do. 

our This distinction between the government of 

Government Parliament and that of Congress comes largely 

Is one of a . s & J 

written from the fact that ours is a government of a 
constitution. wr {tten constitution. 

The constitution of a state or nation is its fundamen- 
tal, organic law which determines its form of government 
and the underlying principles on which its government 
shall be conducted. If the principles, rules, and laws 
determining the organic form of the state are embodied 
in a single written document, the government is one of a 
written constitution. But if these rules and principles 
are made up from statutes, decisions, and precedents that 
have been passed and rendered from time to time, and if 



The Federal Nation 91 

the fundamental law is found in usage and custom based 
on precedents and practices of the past, the nation is then 
said to have an unwritten constitution. The United States 
has a written constitution, — a document of definite length, 
prescribing the rules and methods for conducting the 
government. England has an unwritten constitution, — 
a set of proceedings and long-standing laws that it has 
been customary to go by. An important distinction is 
that in a country with an unwritten constitution the con- 
stitution can be changed by the ordinary legislature, just 
as any law can be amended or changed ; while in a coun- 
try with a written constitution the constitution is placed 
above and out of the reach of the legislature, being sub- 
ject to change only by the same superior authority that 
created the constitution. 

An unwritten constitution is called flexible ; it is "one 
that is capable at any time of being bent, turned, ex- 
panded, or contracted " at the will of the supreme legis- 
lature. It is hard to change only as a nation's habits are 
hard to change. In a government under an unwritten 
constitution the National Legislature is absolute; it can 
do what it will. But it feels bound to conduct the gov- 
ernment on principles that are well known and of record, 
according to laws that are written and old, and according 
to habits that are deep-rooted and revered. These are 
pretty fair safeguards against usurpation, despotism, and 
tyranny; and therefore the government of such a legis- 
lature, while absolute in law, is constitutional in practice. 

A written constitution is called inflexible, or rigid. 
That is, it is one that cannot be easily turned or changed. 
It stands in unbending resistance against the efforts of a 
temporary majority in the legislature to override or disre- 
gard its provisions. Its terms are fixed, and they can be 
changed only by the same slow and difficult process by 
which the constitution was made. 

So far as our Constitution is looked upon as purely 



92 The American Republic 

written, to that extent it is inflexible. But even the 
written Constitution of America has not proven entirely 
inflexible and rigid. Any constitution that will not bend 
must break. A constitution must change and expand 
with the expansion and growth of the country for which 
it was made ; it must be able to accommodate itself, by 
its flexible, expansive qualities, to changed conditions, or 
it will be laid aside. There is constant temptation under 
a very rigid constitution to violate its provisions or to dis- 
regard them by very loose construction. The American 
Constitution contains, not statutory matter, but broad, 
fundamental principles of government, stated in general 
terms; and therefore it has found room to expand, not 
only by the written process of amendment, but also by 
the processes of interpretation, construction, and usage. 1 
While our Constitution is generally spoken of as writ- 
ten, it is not entirely written. Usage has given us, in 
considerable measure, an unwritten constitution. There 
are many instances of constitutional understandings in 
America, practices and, precedents having all the force of 
law, that have been established by usage. It is the law 
of the unwritten constitution that 

Presidential electors have no right to exercise their discre- 
tion in voting for presidential candidates; they must vote for 
their party nominee. 

A President may not be elected for a third term. 

A President may remove his appointees without asking the 
consent of the Senate. 

The House and Senate both conduct their business by the 
committee system, the committees in the Senate being elective, 
while in the House they are appointed by the Speaker. This 
has no other basis than the usage and standing order of each 
House. 

The Senate will not refuse to confirm Cabinet appointments. 

1 See the chapter on the Judiciary, p. 330,. 



The Federal Nation 93 

A member of Congress must reside in the district from which 
he is chosen. 

The party caucus determines the course of party action, and 
a resulting obligation rests on the individual members who 
participate in the caucus to obey the decision of the caucus 
meeting. This relates to our party constitution. It may be 
said that all our party law regulating the constitution of our 
party machinery and proceedings of party conventions is un- 
written law. It consists of nothing but precedents and cus- 
toms ; and the last legislature of the party, that is, the delegate 
convention, may change the party constitution at will. 1 

Thus we conclude that while our National Government 
is one of a written constitution, this has not made it 
inflexibly rigid, nor prevented it from expanding by con- 
struction and usage; that while, it is limited in its func- 
tions, it may exercise original and inherent powers, as 
any sovereign nation may, in matters essentially national ; 
that, while it is a democratic republic, its democracy is 
limited by constitutional safeguards ; and that, while it is 
national, it is also federal. It is a complex, federal- 
national, democratic republic, not consolidated, but fed- 
erated, with local self-government in the States under the 
protection of a powerful Nation. Thus, representative 
government has been enabled to operate over an ex- 
tended and Imperial area, and " democracy and empire " 
are preserved together. 

1 While it is the purpose of this chapter to study the structure of our 
Government apart from political parties, it will be seen, of course, that in 
our unwritten political constitution our political parties make up a very 
important part. 



u 



CHAPTER III 

THE PRESIDENCY 

NDER the old Confederation the United States had 
no President. There was a presiding officer of 
"Congress," but he was merely a moderator of 

The Execu- . . . 

tive under a meeting, and was in no sense an executive 
the old con- h eac i f a government. The President was 

federation. *=» 

created by the Constitution of 1787. 

When the Convention met which formed the new Con- 
stitution it was not an easy matter to come to a conclu- 
sion as to what kind of an Executive the new government 
should have. It was readily agreed that there should be 
three departments, — Legislative, Executive, and Judicial; 
but to cast these into form and to determine their powers, 
duties, and limitations and their relations to one another 
was not an easy task. 

The original "Randolph Plan," supposed to contain 

the backbone and skeleton of the Constitution, proposed 

that a National Executive be instituted to be 

The 

Virginia chosen by the National Legislature. It was 
thought by some, notably by Roger Sherman 
of Connecticut, that the Executive should be nothing 
more than an institution for carrying the will of the legis- 
lature into effect ; that it should be appointed 

Sherman's t i #' i -t->i 

idea of by, and be accountable to, the legislature. The 

Executive legislature was to be "the depository of the 

Dependence. ° r j 

supreme will of the society" ; to make the Ex- 
ecutive independent of the legislature was of the very 

94 



The Presidency 95 

essence of tyranny. The legislature was the best judge 
of the business which ought to be committed to the 
Executive department, and, consequently, of the number 
necessary to do this business. Therefore Sherman would 
not have the number of the Executive department fixed, 
but he would leave the legislature free to appoint one or 
more as experience might dictate; he would have the 
Executive entirely dependent upon the legislature. By 
this theory the legislature is the representative head of 
the body politic ; it thinks and wills and decides. The 
Executive is but the hands and arms and feet to execute 
the will and decision arrived at. 

These views as to the relation between the executive 
and the legislative branches of government serve to sug- 
gest the difference between the Parliamentary p ar iiamen- 
and the Presidential system of government, — taryand 
between the English system and the American. Government 
When governments are classified according to compared, 
the relation of the legislature to the Executive, they are 
either Parliamentary or Presidential. A Presidential Gov- 
ernment, like ours, is the form in which the Executive is 
independent of the legislature. Our President is inde- 
pendent of Congress both in tenure and prerogative. 
Congress does not elect the President (except in an 
emergency), nor can it shorten his term, nor take away 
his constitutional powers, nor in any way remove him, ex- 
cept by impeachment for high crimes and misdemeanors. 
He was not made entirely independent of the legislature, 
but as nearly so as could be, — as nearly as would be safe 
for freedom and good government. 

Parliamentary Government is the form in which the Ex- 
ecutive, is elected by and is dependent upon the legisla- 
ture, in which the legislature has "complete control of 
the administration of law." 1 Under this form the legis- 
lature is the supreme determining will in the State, and 

1 Burgess, p. 13. 



96 The American Republic 

the Executive is the agency to carry out that will. The 
legislature decides, the Executive acts. Under this form 
of government the legislature creates the Executive and 
terminates it at pleasure, and the Executive can under- 
take no course and exercise no prerogative not approved 
by the legislature. Of course such control of the Ex- 
ecutive by the legislature implies either that the legis- 
lature consists of only one house, or that the houses are 
not co-ordinate, — that one is dominant in power and con- 
trol over the other. For instance, in England under 
Parliamentary government, the Commons is the chief 
power in the state, the dominant branch of the legis- 
lature, and as such it is the source of the Executive. The 
Ministry, or Cabinet, which is the executive 

Theory of J ' 

cabinet branch of the Government — usually called "the 
Government. Government," — j s created by the party ma- 
jority in the Commons ; this Executive is responsible for 
its acts and policies to the Commons. If at any time a 
vote is passed in the Commons adverse to the Govern- 
ment or the Cabinet, the Ministry must either resign or 
dissolve Parliament and appeal to the country. If, in the 
election which follows, the people send up a Commons still 
adverse to the Ministry, the Ministry must resign and 
the King must call the leader of the opposition party to 
form a new Cabinet. Refusal on the part of the Ministry 
to resign and to permit the formation of a new Cabinet 
in harmony with the majority in the Commons, or refusal 
of the King so to reorganize the Ministry according to 
the mandate of the election would be equivalent to 
usurpation and revolution and might cause violent up- 
heaval and resistance. The Commons, or the dominant 
branch of the legislature must control the Executive 
policy and acts of the Government. This is called Par- 
liamentary government. It is also called Cabinet or 
Ministerial government, in contradistinction to Presiden- 
tial government. 



The Presidency 97 

Such is the theory of Cabinet government. But the 
practice of the system does not always correspond to the 
theory. It is to be remembered that Parlia- cabinet 
mentary government is a growth. It was never Government 
designed, or created, or established at any one in Practlce - 
time. It is a product of evolution. It grew from age 
to age. It changed from one generation to another, and 
has never been quite the same in its practical operation 
in any two periods of its history. In earlier times it 
was a privy council to the king, subject chiefly to his 
will, — a kind of royal cabal. Later, under the Hanoverian 
kings, it became an agency of the Whig oligarchy — the 
rule of a few powerful families in the realm who con- 
trolled enough boroughs to enable them to control the 
Commons. George III. attempted to make it GeorgeIII . s 
an instrument through which the king should Personal 
again actually govern. George III. did not Government - 
attempt to defy the Commons or to govern without it, as 
Charles I. had done ; but by the corruption of boroughs, 
by means of his pensioners and placemen, he sought to 
control the Commons. The "king's friends " were so 
numerous in Parliament that no party Minister could 
hold his place, or maintain a government, contrary to 
the king's will. But in spite of this last effort of a king 
to govern as well as to reign, Parliamentary government 
was maintained against the royal prerogative, and the 
Cabinet became, as it is now in theory, the executive 
agent of the Commons. The Cabinet originates and 
proposes measures; the Commons is supposed to de- 
liberate on these, to discuss them, and to decide on the 
proposals, accepting or rejecting as the sense of the Com- 
mons is pleased. But in practice to-day the Cabinet 
system presents another aspect. It is not the Commons 
which actually determines on measures, so much as the 
Cabinet itself. It is rare that a ' ' Government ' ' bill is 
discussed. The department that has it in charge gener- 



98 The American Republic 

ally forces the measure through by applying the party 
majority to its support. Criticism is silenced by the 
knowledge that the measure is the proposal of 
emment" the Ministry whom the majority were sent there 
Controls the f support. A private member cannot obtain 

Commons, t . t 

an opportunity for the discussion of a bill unless 
the Government wishes to have it so. Financial de- 
bates on the budget are becoming more and more formal 
every year, the Treasury department fixing the sum to 
be spent, and spending it, while the House concurs in 
practical silence. "In all departments of political life the 
Cabinet governs, and not the House of Commons, which, 
instead of governing, confines itself to appointing, dis- 
missing, and, on occasion, silently influencing the Cabi- 
net." l This has been called a gradual and "unconscious 
revolution." The talking Parliament had talked too 
much, until legislative business had become congested, 
and deliberation and debate came to be regarded as an 
intolerable interruption to the serious business of the 
state, until now we have "Parliament practically con- 
trolled, guided and, in a sense, superseded by what was 
once its executive committee." 8 

While practice has made this accretion of power to the 
Cabinet a natural process, it is still true that the Cabinet 
is responsible, and it may be dismissed at any time if it 
goes contrary to the prevailing opinion of the nation as 
represented in the Commons. The Cabinet is still merely 
the agency through which the democratic power of the 
nation is exercised. 

Now if the views expressed by Roger Sherman in the 
Constitutional Convention had prevailed, we should have 
had the English system of the responsible Ministry. 
Sherman was thinking of the Executive not as one per- 
son, but as several, — as an executive committee to carry 

1 See an article on "Cabinet Government," London Spectator, April 2, 
1898. 2 Spectator, April 2, 1898. 



The Presidency 99 

out the governmental business determined upon, — a 
committee appointed by Congress and dischargeable by 
Congress. This would have made Congress the Sherman's 
responsible supreme power in the nation. It Pr °p° sal of 
would have closely united the executive and system for 
the legislative power and responsibility in one America, 
body. It would have concentrated the powers of govern- 
ment instead of separating them, and under such provision, 
no doubt, something like the English Cabinet system 
would have grown up in America. It would have tended 
toward a more direct democracy in the Government, — pro- 
ducing a government more quickly responding to popular 
behests. Instead of this, the framers of our Constitution 
established the separation of the departments Separation 
of government. Each department, the Execu- oftheDe- 
tive and the Legislative, has its source in the par men1 
people ; each is elected by the people without the inter- 
vention of the other; each has its rights, duties, privi- 
leges, and prerogatives, assigned by the Constitution, 
and for the performance of these the two departments 
are answerable, not to each other, but to the people 
directly, and each is supreme under the Constitution 
and the sovereign power of the people in its own defined 
sphere. 

The Executive is also independent of the Judiciary. 
The Supreme Court cannot control the President in his 
executive policies and conduct. The extent T he Presi- 
to which the President is bound by the de- dent is 

cisions of the Supreme Court has been re- oft he 

peatedly discussed, but the conclusion is that Judiciary, 
he is as independent from control by the courts as from 
the legislature. This will be seen from a number of pre- 
cedents and authorities. In the celebrated case Marburyvs. 
of Marbury vs. Madison (1803), President Jef- Madison, 
ferson refused to be controlled in his legal duty as defined 
by the Supreme Court. Marbury was one of the "mid- 

LofC. 



ioo The American Republic 

night judges" appointed by the Federalist President, John 
Adams, on the last night of his presidential term. Madi- 
son was Jefferson's Secretary of State. When Jefferson 
came into office March 4, 1801, on the desk in the office of 
his Secretary of State was found Marbury's commission, 
appointing him Justice of the Peace in the District of 
Columbia. The President had appointed him ; the 
Senate had confirmed him, and the commission had been 
in due form signed and sealed. Jefferson directed Madi- 
son not to deliver the commission. Marbury, in order 
to secure the commission and properly qualify for office, 
applied to the Supreme Court for a writ of mandamus to 
compel Madison to deliver the commission. The Court 
decided, through Chief Justice Marshall, that Marbury 
was entitled to his commission and that it was clearly 
Madison's duty to deliver it, and that while a lower court, 
if applied to, might issue a mandamus to compel its de- 
livery as a purely ministerial act, the Supreme Court had 
no authority to do so. The President disregarded the 
decision and his legal duty as defined by it, and he claimed 
that the Judiciary had no power to control the Execu- 
tive. Jefferson asserted that nothing in the Constitution 
had given to the Judiciary a right to decide for the Ex- 
ecutive more than to the Executive to decide for the 
Judiciary. 

' ' Both magistracies are equally independent in the spheres 
of action assigned to them. The Constitution meant that its 
t „ co-ordinate branches should be checks on each 

Jefferson on 

Executive other. But the opinion which gives to the judges 
indepen- t ^ e right to decide what laws are constitutional and 

dence of ° 

judicial what are not, not only for themselves in their own 

Control. sphere of action but for the Executive and the 
Legislative also in their spheres, would make the Judiciary 
a despotic branch." ' 

1 Letter to Mrs. Adams, Sept. 11, 1804. Jefferson was here upholding a 
pardon which he had granted to a man convicted under the Sedition Law, 



The Presidency 101 

It is well known that Jefferson would not consent that 
the Judiciary should be the ultimate arbiter of all con- 
stitutional questions; while to allow the judges to deter- 
mine the scope of authority for the other departments 
would be, as Jefferson thought, a very dangerous doc- 
trine, and would lay all things at the feet of the Judiciary. 

That each department was to be co-ordinate and co- 
sovereign in the interpretation of the Constitution for 
itself in its own action, was also shown in the 

Conduct Of Jackson. Vindicates 

In 1832, when the bill rechartering the Executive In " 

dependence. 

Second United States Bank was passed, Presi- 
dent Jackson vetoed the bill, giving, as one of his main 
objections, that it was unconstitutional. The bank had 
been in existence for many years, and this bill for a new 
charter did not alter the constitution of the bank in any 
material respect. The constitutionality of the law under 
which the bank was existing had been tested in the United 
States Supreme Court. In 18 19, in the celebrated case 
of McCulloch vs. Maryland, the Court unanimously de- 
cided that the law was constitutional. In 1824, in an- 
other case, this decision was reaffirmed by the same 
Court. President Jackson, however, did not feel bound 
by these decisions, and he insisted that the Executive, 
like each of the other departments, was to be its own 
judge on constitutional questions that came within its 
particular sphere of action. In his Bank veto message 
he said : 

1 ' It is maintained by the advocates of the Bank that its con- 
stitutionality in all its features ought to be considered as settled 
by precedent and by the decision of the Supreme Court. To 
this conclusion I cannot assent. Mere precedent is a danger- 

on the ground that the law was unconstitutional. See also Jefferson to 
Jarvis, Works, vol. vii., p. 177 ; Jefferson to Thomas Ritchie, Dec. 25, 
1820. 



102 The American Republic 

ous source of authority and should not be regarded as deciding 
questions of constitutional power, except where the acquiescence 
of the people and the States can be considered as well settled. . . . 
If the opinion of the Supreme Court covered the whole ground 
of this act, it ought not to control the co-ordinate authorities 
of this government. The Congress, the Executive, and the 
Court must each for itself be guided by its own opinion of the 
Constitution. Each public officer who takes an oath to support 
the Constitution swears that he will support it as he understands 
it, and not as it is understood by others." 



In 1 841, President Tyler's veto of a new Bank Bill 
again brought up this question. Mr. Buchanan, after- 
wards President, then a member of the House, 

Executive ' # ' 

independence in defending his vote against the bill and in 
by S the taine favor of Tyler's veto, endorsed Jackson's po- 
opinionof sition. He held the legislator to be as inde- 
pendent of the Court as the President. Though 
all the judges in the country had decided in favor of the 
Bank, when the question was brought home to him as a 
legislator bound to vote for or against a new charter, on 
his oath to support the Constitution, Buchanan held that 
he would have to exercise his own judgment ; if the argu- 
ments and opinions of the judges failed to convince him 
that the law was constitutional, he held that he would be 
guilty of perjury if he voted in its favor. 

In June, 1854, Charles Sumner was bitterly assailed in 
the United States Senate by pro-slavery Senators for 
And of having indicated that he would not help to en- 

sumner force the Fugitive Slave Law of 1850, which he 
deemed unconstitutional. The constitutionality of the 
law, or a similar one, had been upheld by the Court. 
Sumner Was charged with violating his oath to support 
the Constitution of the United States. In his speech in 
reply to his assailants, after quoting Jackson and Buchanan 
as good Democratic authority, Sumner said : 



The Presidency 103 

" I have sworn to support the Constitution as I understand 
it, and not as it is understood by others. Does any Senator 
here dissent from this rule? At all events, I accept the rule 
as just and reasonable, — in harmony, too, with that liberty 
which scorns passive obedience, and asserts the inestimable right 
of private judgment whether in religion or politics. In swear- 
ing to support the Constitution at your desk, Mr. President, I 
did not swear to support it as you understand it. I swore to 
support the Constitution as I understand it, not more, not 
less." 

Lincoln's words are to the same effect. In his debates 
with Douglas in 1858, he quoted Jackson with approval, 
and he gave notice that he regarded the Dred And of 

Scott decision as erroneous; and while no re- Lincoln, 
sistance should be offered to it as the law in the particu- 
lar case decided, yet Lincoln denied that the country 
should feel bound by it as a precedent; both he and 
Seward charged the President and the Chief Justice with 
collusion, and there is no doubt that, as President, Lin- 
coln would have refused to be bound by the Supreme 
Court's decision; that he would have continued to assert 
the power of Congress, and he would have used all the 
powers of the Presidency, to prohibit slavery in the Terri- 
tories, in opposition to the Court. 

Webster held a somewhat different view. While 
speaking in party opposition to Jackson's veto of the 
Bank Bill, Webster asserted that a decision of 

Webster's 

the Supreme Court of the United States was view of 
binding on all other departments of the Gov- D f " c d "„™ 
ernment. When the question is whether the on judicial 
law is to be passed, the legislator and the P""on. 

President must determine for themselves whether Con- 
gress has constitutional power. But when the question 
is whether a statute which is in force shall be continued 
or amended, a previous decision of the Supreme Court 
that the original statute was constitutional has a greater 



104 The American Republic 

force than the mere weight of the reasoning by which the 
Court upheld it. Mr. Webster pointed out that the same 
principle of action on which the President, in his legis- 
lative capacity, refused to approve a law continuing an 
existing law in force would enable him, in his executive 
capacity, to refuse to execute a law which he deemed un- 
constitutional. 1 Webster said : 

1 ' The President is as much bound by the law as any private 
citizen, and can no more contest its validity than any private 
citizen. . . . The President may say a law is unconstitu- 
tional, but he is not the judge. Who is to decide that ques- 
tion? The Judiciary alone possesses this unquestionable and 
hitherto unquestioned right. The Judiciary is the constitu- 
tional tribunal of appeal for the citizen against both Congress 
and the President, in regard to the constitutionality of laws. 
. . If we depart from the observance of these salutary 
principles the executive power becomes at once purely 
despotic." 

No doubt Jefferson and Jackson, Sumner and Lincoln, 
were right in their view that a President must judge for 
himself as to his constitutional duty, and that he has a 
perfect right to refuse his sanction to a bill on constitu- 
tional grounds, though such a bill has previously been 
held to be constitutional by the Supreme Court. On 
this point Judge Cooley says : 

" It has been claimed, however, that when the point of con- 
stitutional law which the case presents is one which has pre- 
viously received judicial examination and decision, 

Cooley on the . _. . ■ . . ' „ .. , , . , 

Relation the " resident may not rightfully disregard this de- 

ofthe cision and base his negative on his own opinion 

s * opposed to that of the Judiciary. 

That the President has a discretionary power to veto a 

bill for any reason that appears to him sufficient is undoubted. 

^ee Curtis, G. T., Constitutional History of the United States, vol. ii., 
p. 70 ; G. T. Curtis's Life of Webster, vol. i., p. 417 ; Hamilton, in No. 

78 of the Federalist. 



The Presidency 105 

The Constitution gives the power and makes no exceptions. 
That it is proper that he pay great deference to the judicial 
authority on such questions as have already been authorita- 
tively determined may also be conceded. But that he is guilty 
of any violation of duty, or is disrespectful of the Judiciary, or 
disregards any just principles of government when he acts upon 
his own judgment of constitutional right, power, or obligation 
involved in any proposed law is not admitted. When he does 
not approve a bill, he is to withhold his approval, and when he 
may do so on the ground of mere expediency, it would be re- 
markable if he were not at liberty to do so when his objection * 
goes to the very right of the legislature to pass the bill at all." 

But Webster was also right in asserting that a President 
should not refuse to execute a law merely because in his 
opinion it is unconstitutional. The importance 
of this view of Webster's was emphasized by President 
Jackson's high-handed conduct in his refusal to is Bound by 
execute the law as declared by the Supreme 
Court for the protection of the Cherokee Indians against 
the State of Georgia. It was in the case of Worcester 
vs. Georgia (1832), in which the Court declared it to be the 
President's duty to protect the Cherokees, that Jackson is 
said to have made use of the notable expression, "John 
Marshall has made his decision: now let him enforce it." 
This was an illegal attitude on the part of the President. 
But there was no remedy in the Judiciary. If the Presi- 
dent violates his oath to execute the law it is the duty of 
the House to impeach him and of the Senate to convict 
and remove him. If the houses fail to impeach, the only 
remedy lies in the power of the people to relieve such a 
President from office at the next election. If the people 
endorse the President's course by re-election, as in the 
case of Jackson, the sovereign voice has spoken, and that 
is final. 

The President is bound to execute an act that has been 

1 Constitutional Law , p. 162. 



106 The American Republic 

passed over his veto, no matter if such an act seems to 
him clearly unconstitutional. He may not violate or dis- 
regard this act as a means of testing its validity before the 
Court. This would be to give him the suspending power. 
It would be a double veto : one veto to be overcome only 
by a two-thirds majority in both Houses, the other to 
be overcome only by a judicial decision. The constitu- 
tionality of an act of Congress can be brought before the 
courts only by persons not charged with the execution of 
the laws, whose interests are affected by the act in ques- 
tion. This principle was argued at length in the im- 
peachment trial of President Johnson. 1 The President's 
constitutional prerogatives may be infringed upon by an 
Act of Congress, as was done in the Tenure of Office Act in 
1867 ; but the only defence of the President is in his veto. 

Nor can the President be restrained by injunction from 
carrying into effect an Act of Congress alleged to be un- 
The constitutional. This was made clear in Recon- 

president struction times. On March 2 and 23, 1867, 
Restrained by Congress passed two measures commonly called 
injunction, th e Reconstruction Acts. These Acts recited 
that no legal State governments for the protection of life 
and property existed in certain Southern States, and that 
it was necessary that peace and order be maintained there 
until loyal Republican States should be established ; and 
it was made the duty of the President to use military 
authority in protecting property, punishing violence, and 
maintaining order. These Acts President Johnson vetoed 
as unconstitutional, and they were passed over his veto. 

A motion was made before the Supreme Court "for 
leave to file a bill in the name of the State of Missis- 
Mississippi si PP i Paying the Court perpetually to enjoin 
vs. Johnson, and restrain Andrew Johnson, President of the 
United States, and his officers and agents, and 
especially A. O. C. Ord (General), assigned as military 

1 See Burgess's Reconstruction, pp. 182-183, ef se( I> 



The Presidency 107 

commander of the district of Mississippi, from executing 
or in any manner carrying out the two Acts of Congress 
named in the bill," on the ground that the Acts were 
unconstitutional. 

The Attorney General objected to the leave to file the 
bill, upon the ground that "no bill which makes a Presi- 
dent a defendant and seeks an injunction against him to 
restrain him in the performance of his duties as President 
should be allowed to be filed in the Court. ' ' The Supreme 
Court sustained the objection and refused to consider its 
right to restrain the President, "without expressing any 
opinion on the broader issues, whether in any case the 
President of the United States may be required by the 
process of this Court to perform a purely ministerial act 
under a positive law, or may be held amenable, in any 
case, otherwise than by impeachment for crime." 1 

It was assumed by the attorneys for Mississippi that 
President Johnson, in the execution of the Reconstruc- 
tion Acts, was required to perform a mere Distinction 
ministerial duty. This confounds the terms between 

. . -7i • 1 • t 1 Ministerial 

ministerial and executive, which are by no andE , 



,xecu- 



means equivalent. tive Dut y- 

A ministerial duty, the performance of which may, in 
proper cases, be required of the head of a department by 
judicial process, is one in respect to which nothing is left 
to discretion. It is a simple definite duty, arising under 
conditions admitted or proved to exist, and imposed by 
law. It is the act of an agent who must act as directed, 
without discretion. 3 In his executive duty the President 
acts as a principal. In this capacity he stands instead 
of the people, subject only to the control of other prin- 

1 Mississippi vs. Johnson, 1866. 

2 Marbury vs. Madison affords an illustration. The delivery of the com- 
mission to Marbury was a purely ministerial act and a lower court might 
have issued a mandamus to compel this act. See p. 100. See also Kendall, 
Postmaster-General, vs. Stockton and Stokes ; Boyd's Cases in Constitu- 
tional Law. 



108 The American Republic 

cipals whom the people have appointed in their stead. 
He has power to control the executive policy within con- 
siderable discretion. The people may hamper and weaken 
their President and reduce his discretion by a hostile two- 
thirds majority in Congress, — by laws limiting his powers 
or interfering with his prerogatives, passed by this ma- 
jority that stand ready to impeach the President if he 
disregards their restrictions. Thus Congress may put 
the President in a sort of strait-jacket and bind him down 
by restrictions. But the people, when they assume to 
exercise such power through Congress, should remember 
that they, too, must act according to law, and they have 
a right to limit the President's powers only within legal 
limits. If they wish to take away the President's rights, 
powers, and prerogatives through Congress they must do 
so by a constitutional process, and not by the mere ap- 
plication of a brutal majority. 

We may profitably sum up this subject of executive 
independence in the words of one of the best-known 
American authorities in constitutional law : 

1 * Within the sphere of his authority the Executive is inde- 
pendent, and judicial process cannot reach him. But when 
Summary ^e excee ds his authority, or usurps that which be- 
View of longs to one of the other departments, his orders, 
Hide^n- 6 commands, or warrants protect no one and his 
dence. agents become personally responsible for their acts. 

Cooiey. The check f t h e courts consist in refusing the 

sanction of the law to whatever act is in excess of it, and of 
holding the executive agents and instruments to strict ac- 
countability." 1 

It is in this way the Americans have separated the 
governmental powers. Some writers have preferred the 

Cooiey, Constitutional Law, p. 157. See also Kent's Commentaries, 
vol. i., pp. 500-507 ; Webster on the Independence of the Judiciary, Works, 
vol. iii., p. 29. 



The Presidency 109 

English system, by which these powers are concentrated 
in one body. In England all departments of the govern- 
ment are controlled by a sovereign ministry. 
It is said that by confiding legislative power ^Amedcan 
and the election and control of the Executive systems 
to the same hands, the nation is enabled in any om P are • 
time of emergency to act with its whole force. The 
English Premier, while supported by his party majority 
in the Commons, is absolute; he may appoint whom 
he pleases, dismiss whom he distrusts, and spend what- 
ever is necessary. The English, under their system, in a 
time of great public emergency, may dismiss an inefficient 
Executive and call their strongest, most capable man into 
power. The American people cannot do this. 

11 The framers of the Constitution were possessed with two 
fears: that the Executive might be become too strong, and 
they therefore deprived it of any place in Congress ; 
and that it might become too weak, and they there- Danger 

fore made its chief irremovable except by impeach- in the 

ment, vesting him at the same time with absolute n epen Q ® "** 
power to appoint and to dismiss his advisers, and American 
with the initiative in the nomination and removal Executlve - 
of all officers, an initiative which during the recess of Congress 
becomes a right of appointment. The result of this arrange- 
ment is that in an emergency, like a great war, an inefficient 
President means incurable inefficiency in all departments. 
There is no power of removing him, there is no power of com- 
pelling him to trust the right men, there is no power of coercing 
him into a greater display of energy. He moves on in his own 
path more uncontrolled than an Emperor of Russia, for the 
army has in Russia an influence in emergencies which is never 
disregarded. Suppose that in a dangerous war crisis, the 
President, being, as he is, the sole source of executive energy 
in the Republic, is unequal to his position, does not feel clear 
what he ought to do, does not pick precisely the right men — 
in short, suppose, through sheer stubbornness or incompetency, 



no The American Republic 

he fails to rise to the occasion and do what is necessary, — 
where is the remedy? There is simply none. The United 
States might possess the greatest organizer alive ; the American 
people might be boiling over with irritation; the Army and 
Navy might be almost mutinous in their despair at inaction ; 
and still there would be nothing to be done. The President 
cannot be removed; he is no more bound to obey opinion 
than a judge is; and as to the officers, what can they do ex- 
cept wait sullenly on till final orders are received? " 1 

This criticism of our Presidency in comparison with the 
English Ministry has force. In 1861, the nation was im- 
patient and angry because President Buchanan in a time 
of great emergency seemed nerveless and inactive. Yet 
nothing could be done but to hope that the President 
would surround himself with better advisers and virtually 
give the reins to stronger hands, as Mr. Buchanan finally 
did, or to wait till his term had expired. But perhaps 
this criticism disregards too much the influence of public 
opinion. This is powerful, if not decisive, and it gen- 
erally leads the President to act in harmony with the 
positive and pronounced desire of the nation. And as a 
matter of fact, in great war emergencies, our Presidents 
have done well.- Experience has shown that they can 
be trusted to rise above personal and party purposes and 
act patriotically for the nation's welfare. But it must be 
recognized that the system makes possible an incompetent 
Executive for a crisis, or a base betrayal of his trust. If 
the American people should be called to face a dreadful 
occasion with such an Executive, whom they could not 
remove for several years, they might think it advisable 
"by a rapidly passed amendment to allow the House of 
Representatives to put the continuance in office of such 

'London Spectator, June 25, 1898, article on "The Sovereignty in 
America, France, and England." The student is advised to consult this 
article. 



The Presidency in 

a President before the people to be decided by a 
'Referendum.' " x 

Why did the statesmen of 1787 adopt the present sys- 
tem of the separation of powers rather than the Parlia- 
mentary system of the union of these powers? Wh 

Three reasons have been urged in explana separation 

tion Of this : Departments 

I. The experience and observation of the was 

men of 1787 under the English Constitution. 
It was supposed that that Constitution properly admin- 
istered would secure the separation and independence of 
governmental powers. The result reached by our Con- 
stitution-makers was partly the result of their misappre- 
hension of what the English Constitution was coming to 
be. That Constitution was not then what it is now. It 
was not then quite what our fathers thought it was, 
though recently it had been, to all appearances, as they 
understood and interpreted it. It was in process of 
change. The ministerial system of a Cabinet responsible 
to the Commons and not to the king was in the process 
of development. If such a Cabinet had previously existed 
in England, it was not because it was seen to be an es- 
sential part of the English Constitution, but Influenceon 
from the circumstances of the times. The first American 
two Hanoverian kings of England, George I. ^p^nce 
(1 714-1727) and George II. (1 727-1 760), were under 

not able to speak the English language and eorge 
were more or less indifferent to the management of the 
English Government ; if they could reign in honor and be 
undisturbed in their royal revenues, they were ready to 
leave the real and responsible business of government to 
their Ministers. They were more interested in Hanover, 
and the questions of state were a burden to them ; they 
were willing to leave these to Walpole, the first Prime 
Minister, and to his successors. These kings had a right 

1 Spectator, June 25, 1898. 



ii2 The American Republic 

to attend Cabinet meetings, but if they attended they 
probably went to sleep while bills and budgets were 
being discussed. Consequently, royal attendance at Cab- 
inet councils declined. It was easier to govern through 
the Prime Minister, and the Parliamentary government 
of the times of Walpole and Pitt sprang up, and able 
Ministers managed the Commons. But when George 
III. came to the throne, he proposed to govern as well 
as to reign. His mother told him to be king, to be the 
Executive in fact as well as in name. He attempted to 
be the real manager and director of government in Par- 
liament. By his patronage and bribes and Court favors 
he was able to place his supporters in Parliament, and the 
"King's friends " became the chief power in the State. 
It was in 1780, but a short time before our Constitution 
was made, that the Dunning resolution was carried in 
Parliament that "the power of the Crown has increased, 
is increasing, and ought to be diminished. ' ' George III. 's 
temporary personal power, from 1760 to 1783, led our 
fathers to overestimate the monarchical element in the 
English Constitution. To them the king appeared to be 
the real Executive, and they believed that his attempts to 
control the legislature were dangerous to liberty. The 
legislature should be kept free from the bribes and threats 
and power of the king, who was constantly attempting to 
put his hand in where it did not belong. Consequently, 
in creating the President, who was to represent the mon- 
archical element in our Government he must be kept from 
doing what George was doing, — from influencing and 
controlling the legislature. The Constitution, therefore, 
while throwing restrictions and limitations around the 
President, should make the legislature separate and inde- 
pendent of his control. 

2. The political philosophy which the makers of our 
Constitution accepted taught that freer and better gov- 
ernment would be promoted by the separation of the 



The Presidency 113 

three departments of government. This was the political 
theory of the time, and it was deeply instilled in the 
minds of American political thinkers and states- influence of 
men. The treatise on government which most Political 
influenced them at the time and with which on the 

they were familiar, was The Spirit of Laws, separation 
written by Montesquieu, a Frenchman. Powers of 

Government. 

" This book," says Mr. Bryce, " had won its way to an im- 
mense authority on both sides of the ocean. Montesquieu, 
contrasting the private as well as the public liberties of Eng- 
land with the despotism of continental Europe, had taken the 
Constitution of England as his model system, and had ascribed 
its merits to the division of legislative, executive, and judicial 
functions which he discovered in it and to the system of checks 
and balances whereby its equilibrium seemed to be preserved. 
No general principle of politics laid such hold on the Consti- 
tution-makers and statesmen of America as the dogma that the 
separation of these three functions is essential to freedom. It 
had already been the groundwork of several State constitutions. 
It is always reappearing in their writings; it was never absent 
from their thoughts." ' 

Blackstone, in his Commentaries, published in 1761, de- 
scribing the theory rather than the practice of the Eng- 
lish Constitution, presented the same idea that our fathers 
had received from the political philosophy of Montes- 
quieu. " Whenever the power of making and that of en- 
forcing the laws are united together there can be no public 
liberty. "' "The powers and functions of the Cabinet, 
the overmastering force of the House of Commons, the 
intimate connection between legislation and administra- 
tion, these which are to us the main characteristics of the 
English Constitution were still far from fully developed. " s 

1 American Commonwealth, vol. i., pp. 29-30. 

2 Blackstone. 3 Bryce, vol. i., p. 29. 



ii4 The American Republic 

3. The third influence making for the separation of gov- 
ernmental powers was the precedent of the State consti- 
tutions and the experience of the colonial and 

Influence T . _ - . t 

of the State governments. In the Colonies, the Ex- 

state con- ecutive was the governor, usually appointed 

stitutions. & J rr 

by, and dependent upon, the Crown. The 
colonists stood for charters and constitutions which 
tended to restrain the royal prerogative and power exer- 
cised through the royal government. Many of the men 
who framed our Constitution had lived under colonial 
charters which had drawn lines of separation between the 
departments of government, and between 1776 and 1787 
they had helped to form State constitutions which defined 
these lines still more distinctly. They were merely act- 
ing in harmony with the experience of their past and the 
teaching of their times. 

It was early agreed in the Convention that the new 
Central Government should have an authority to execute 
sin ie or *ke l aws - Should this authority be single or 
piurai plural; should it consist of one person or of 

Executive. more than one? Mr. Wilson favored a single 
Executive as " giving most energy, despatch, and re- 
sponsibility to the office. ' ' Mr. Randolph thought a single 
Executive would be the beginning of monarchy. The 
temper of the people was averse to the semblance of 
monarchy. "It was agreed," said Randolph, that 
"vigor, despatch, and responsibility were the qualities 
needed in the Executive, but unity was not necessary 
and a plural Executive was just as efficient. A single 
magistrate would never secure the confidence of the peo- 
ple. It would be too much like the English king." 

Mr. Wilson replied that a single Executive would not 
be unpopular. All the thirteen States, though agreeing 
in scarcely any other instance, agree in placing a single 
magistrate at the head of the Government. There can 
be no co-ordinate heads in a government. The experience 



The Presidency 115 

of Holland was held up as conclusive evidence of a plural 
Executive. Unity would favor both the tranquillity and 
the vigor of the Government. It was feared that the 
resemblance between a single Executive and the king 
would cause a rejection of the whole plan by the people. 
It was thought wise to attempt to prove in the Federalist 
that no very close analogy existed. 1 The arguments 
urged by Wilson and others carried the Convention, and 
a single Executive was agreed to. 

The President's term was fixed at four years and he is 
eligible to re-election. Washington accepted a second 
term, but refused a third. Jefferson also might Term 
have been elected a third time, but he followed office and 
the example of Washington and refused a t hi r d Re - eligibility * 
term. President Jackson, who was very popular with 
the people, commended this precedent, and no serious 
attempt was ever made to elect a President to a third 
term until, in 1880, some of the friends of ex-President 
Grant sought to secure his third election. The attempt 
was not received favorably, and was defeated, and it may 
now be said to be a part of the unwritten constitution 
that no President is eligible to a third term. Many think 
it would be better if the President were not eligible even 
to a second term ; that he would not then be tempted to 
use the power and patronage of his office to secure a re- 
election ; that, as it is, most of his thought and attention 
are occupied during his first term in considering, not how 
he may make a good President, but how he may secure 
a second nomination ; and consequently he must do, not 
what the nation needs, but what the political managers 
require. This question was greatly discussed Mode f 
in the Convention and was closely connected Election and 
with the length of his term and the mode of Re - ell £ ,blIlt y* 
his election. If he were to be elected by Congress as 
first proposed, it was thought he should not be re-eligible, 

1 See Federalist, Nos. 67 and 69. 



n6 The American Republic 

for in that case he would be constantly intriguing with 
Congress for re-election. The framers of the Constitu- 
tion never once imagined that a President 

Re-election ° 

and would use the patronage of his office, through 

patronage. p ar t v politicians, to secure his re-election by the 
people or the continuance of his party in power. Many 
favored a longer term than four years, some five, some 
six, some seven, some ten, — the longer the term the more 
pronounced the disposition not to allow a re-election. 
Hamilton, who most of all favored a strong government, 
and wished to create the strongest possible Executive, 
favored the appointment of the President for good be- 
havior or for life, subject only to removal by impeach- 
ment. This, of course, would not be tolerated to-day. 
But we must remember that Hamilton did not foresee a 
party President or one that would use his office for party 
ends. He wished to promote stability and force in the 
government, not democracy; and to Hamilton's mind 
the President should be like the English sovereign of to- 
day, above parties and party strife, holding an even and 
impartial hand between contending parties. But, as it 
turned out, our President was to have real not merely 
nominal powers ; and he has come to be a party leader 
and to have even larger powers than were anticipated. 
Hamilton's plan, so far as the presidential powers extend, 
would have prevented " government by the people." 

The method of electing the President provided by the 
Constitution is as follows : 

' ' Each State shall appoint, in such manner as the Legislature 
thereof may direct, a number of electors, equal to the whole 
How the number of Senators and Representatives to which 
President the State may be entitled in the Congress ; but no 
is Elected. Senator or Representative, or person holding an 
office of trust or profit under the United States shall be ap- 
pointed an elector." 1 

J Constitution, Art. II., Sec. I, CI. 2. 



The Presidency 1 1 7 

" The electors shall meet in their respective States, and 
vote by ballot for President and Vice-President, one of whom 
at least shall not be an inhabitant of the same State with them- 
selves." 1 

The body of the electors, when they meet in their re- 
spective States to vote for President and Vice-President 
are called the Electoral College. Congress may determine 
the time for choosing the electors and also the time for 
their meeting in the College to choose the President. 
They are now elected, in the year of the presidential elec- 
tion, on the first Tuesday after the first Monday in No- 
vember. This day was appointed by an Act of 1845. 
The day for choosing the electors must be the same 
throughout the United States. This is required by the 
Constitution. In all the States the electors are chosen by 
popular vote, and in most of the States the balloting is 
by the Australian system. It is not necessary that the 
names of the presidential candidates should be upon the 
ballot. In point of law the voters vote for the electors, 
not for the party candidates. The electors meet for their 
final voting in their respective State capitals on the second 
Monday in January. Originally, by the Act of 1792, the 
meeting of the Electoral College was required to be on 
the first Wednesday in December, and the popular election 
was to be thirty-four days preceding this. But by the 
Act of 1887, the first Monday in January was fixed for 
the meeting of the College. The electors meet in their 
respective State capitals on the same day. They organize 
by electing one of their number chairman and by choosing 
a secretary. If an elector should die between the popular 
election in November and the meeting of the College, or 
be prevented by sickness or accident from attending the 
College, the remaining electors may choose some one to 
fill the vacancy. The electors ballot, all voting for the 

1 Twelfth Amendment. 



n8 The American Republic 

candidate for whom they were elected to vote. 1 They 
must name in their ballots the person voted for as Presi- 
dent, and in distinct ballots the person voted for as Vice- 
President. 

The law requires three certificates of the result of the 
ballot in the respective States to be kept. One is filed 
with the Judge of the United States District Court of the 
electors' State, one is sent by mail, and one by mes- 
senger — usually one of the electors — to the President of 
the Senate. "The President of the Senate shall, in the 
presence of the Senate and House of Representatives, 
open all the certificates and the votes shall then be 
counted/' 3 The day appointed for the counting in 
Congress is the first Wednesday in February. If no 
candidate for President receive a majority of the electoral 
Eventual votes, then from the three highest "on the list 
choice of f those voted for, the House of Representa- 
bythe tives shall choose immediately by ballot the 

House. President. But in choosing the President the 

votes shall be taken by States, the representation from 
each State having one vote " ; a quorum for this purpose 
shall consist of a member or members from two thirds of 
the States, and a majority of all the States shall be neces- 
sary to a choice. In the election of the Vice-President, 
if a majority of the Electoral College do not 

Eventual J J & 

choice of unite on a candidate, "then from the two high- 
the vice- est on t j ie j ist t j ie g enate s h a ri choose the Vice- 

President 

by the President; a quorum for the purpose shall 

consist of two thirds of the whole number of 
Senators, a majority of the whole number being neces- 
sary to a choice." If no President is elected by either 
the Electoral College or the House before the expiration 
of the current presidential term on the 4th of March fol- 
lowing, and if a Vice-President should be elected by that 
time, the Constitution provides that this Vice-President 

1 See p. 133 on Act of 1887. 2 Constitution. 



The Presidency 119 

shall become President until an election of a President is 
accomplished. If neither President nor Vice-President 
be elected by March 4th, the Constitution does not indi- 
cate who shall act as President, and nobody is vested 
with power to determine the question. There would be 
an interregnum, unless the existing President and Vice- 
President should resign before the close of their term, in 
which case, by the provisions of the Presidential Succes- 
sion Bill, the Secretary of State would act as President 
until an election be made. The Constitution should pro- 
vide that an existing President should hold office until 
his successor be elected. 1 

The above is the process prescribed by the Twelfth 
Amendment to the Constitution. 2 Formerly, before this 
Amendment was adopted, the electors might vote for 
two persons without designating which one was intended 
for President and which for Vice-President. The person 
receiving the greatest number of votes was to be Presi- 
dent, provided that number were a majority of all the 
electors appointed ; and after the choice of the President 
the one receiving the next highest number of votes should 
be Vice-President, no matter whether the votes cast for 
him be a majority of all or not. John Adams was elected 
Vice-President in 1789, although he did not receive half 
the votes. This system soon led to confusion and to a 
disputed election. In the election of 1800, Jefferson and 
Burr each received the same number of votes, Disputed 
each having a majority. The electors desired Election of 
to have Jefferson for President and Burr for Twelfth 
Vice-President, but the Constitution provided Amendment, 
no means of their designating that, and when each re- 
ceived the same number of votes the election for Presi- 
dent was thrown into the House. Jefferson was elected 

1 Burgess, vol. ii., p. 239. 

2 See " A Study of the Twelfth Amendment," by Lolabel House, Doctor's 
Thesis, University of Pennsylvania, 1901. 



120 The American Republic 

there, but only after a severe contest. This contest led 
to the adoption of the Twelfth Amendment, which pro- 
vides the present mode of election. 
Electoral The device of the Electoral College was 

college was adopted chiefly for two reasons : 

I. To avoid the necessity, on the one hand, 
of election by Congress. This, it was thought, would 
have subjected the Executive to the legislature in violation 
of the principle of the separation of powers. The Presi- 
dent was to be independent of Congress. He was to be 
dependent upon the people and free to guard their welfare. 
2. To avoid, on the other hand, direct popular election. 
This was then thought to be a dangerous democratic ex- 
treme. The idea was that the people were not competent 
to make the election themselves ; they would be the dupes 
of wily demagogues who would mislead and deceive them. 
They were subject to dangerous excitements and passions 
and were not to be trusted with such responsibility. But 
the people might be allowed to elect the wisest and most 
competent men among themselves, who from their greater 
knowledge of the needs of the country and of the eligible 
men for the Presidency might go aside into a deliberative 
assembly where they would be free to choose a fit man 
Dread of for President. When it was first proposed in 
Democracy t h e Convention that the President should be 
stitutionai elected by the people, the member who pro- 
convention. p 0sec j ft » apologized for the suggestion ; he was 
reluctant to declare the mode which he favored, being 
apprehensive that it might appear chimerical. Another 
thought the people too little informed, too liable to de- 
ception, and it was declared that 2 it would be "as un- 
natural to refer the choice of a proper character for chief 
magistrate to the people as it would be to refer a trial of 

1 Mr. Wilson, of Pennsylvania, under date of June I, 1787. 

2 Mr. Mason of Virginia, under date of July 17, 1787. See Debates of 
the Convention. 



The Presidency 121 

colors to a blind man. It was supposed that the electors 
would be the best men in their respective States, and 
that in their unfettered discretion they would choose the 
fittest man for President in all the country. 

The failure of this scheme is familiar to all. The an- 
ticipations of the framers in this matter have been en- 
tirely disappointed. It is now known that the 
electors are not independent ; they are not free e ^f the 
to choose whom they will; they do not exer- Electoral 
cise their own discretion. They are chosen 
under a pledge of honor to vote for a particular candi- 
date. When they meet, the people have already chosen 
the President. The electors are merely the character 
agents of their party, appointed to ratify the and 

f • 1 1 , -Ttti , -. 1 Functions 

election already made. Who and what they D fthe 

are, whether they are the best and wisest leaders Electors, 
among their respective States, no one knows and no one 
cares. The electors are personally of so little account, 
and their standing and party relation so little known, 
that it is now the custom (though it is not necessary), to 
place the names of the presidential candidates at the top 
of the ticket on which the electors' names are printed, so 
as to enable the voter to know which set of electors stand 
for his party. As to the personnel of the electors, it is 
sought only to know that they will faithfully stand by the 
party nominee and register the result which they are 
elected officially to proclaim. An elector may be nomi- 
nated because he is a good speaker and he may be ex- 
pected to canvass his district for his party, and perhaps he 
will expect some party appointment or reward after the 
election of his candidate. 

It would be perfectly legal and constitutional for an 
elector to vote for whom he pleases other than his party 
candidate. A Republican elector in any State carried by 
that party might vote for the Democratic candidate and 
divide the vote of the State and thus defeat his party 



122 The American Republic 

nominee ; his vote would have to be counted as he cast it, 
not as he was elected to cast it, and there would be no 
The Law * aw to P un i sn tne recreant elector. Some 
ofthe extra-legal punishment would probably be de- 

c "n^titutTon vised for an elector who refused to vote for the 
Binds the party candidate for whom he had been elected 
vote for ° to vote, especially if his vote contributed to his 
the Party party's defeat. He would be looked upon as 
a traitor to his party and his party's cause, and 
he would probably not find it comfortable to return 
home. At any rate he would be ostracized and despised 
and would be visited with the social condemnation and 
contempt due to one who had been guilty of an infamous 
betrayal of a public trust ; and a presidential candidate 
elected by such betrayal would probably not accept the 
office. Public sentiment would be so universal against 
such an act, and the party fealty of the electors is so well 
guarded that it is safe to say that no such act is apt to 
occur. No law of the Constitution is stronger or more 
inviolable than this unwritten one that a Presidential 
elector is required to vote for the party candidate selected 
by the party convention and the popular election. But 
this is a great change in the electoral system from what 
our fathers intended, and from the actual practice in the 
first few elections. 

How was this change brought about? By a change in 
our party customs and party machinery and by the rise 
causes of of the representative party convention. To 
the change, understand this change fully, we must notice 
the rise and growth of our party system, a subject con- 
sidered in a companion volume to this work. 1 

No part of the Constitution was regarded with more 
satisfaction by the framers than the Electoral College. 
It is often said that it is about the only original thing in 
the Constitution — the only actual invention of the Con- 

1 See the author's Political Parties and Party Problems. 



The Presidency 123 

vention — not based on an existing institution or a pre- 
vious experience, and it is the one part of that instrument 
that has utterly failed to fulfil expectations. But while 
this plan of electing the President finds no precedent in 
the Old World it was not entirely new. In 

^ •• r-n/riii • x- Precedent 

the Constitution of Maryland, adopted in 1776, for the 

we find an almost exact counterpart of the Electoral 

r College. 

electoral scheme. The State Senators in Mary- 
land were elected by a body of electors chosen every five 
years by the voters of the State for this particular pur- 
pose. Bowdoin, in the Massachusetts Convention that 
ratified the Constitution, recognized that the method of 
choosing the President was probably taken from Mary- 
land's method of choosing Senators. 1 "The mode of 
appointment of the Chief Magistrate of the United States 
is almost the only part of the system which has escaped 
without some censure, or which has received the slightest 
mark of appreciation from its opponents." 2 

In the first two elections (1789 and 1792) all the electors 
voted for Washington without question, though they 
generally divided according to party opinion, then form- 
ing, on the Vice-President. In the election of 1796, the 
electors were still left unpledged, but in electing them 
the voting was on party lines, and when they came to 
cast their votes they voted as they were expected to, — 
the Federalist electors for Adams, the Democratic electors 
for Jefferson. By 1800, the notion of leaving any free- 
dom and discretion to the electors had vanished, and it 
has ever since been agreed that the nation, not the 
electors, must decide who shall be President. 

Each State is left free to determine its own method of 
choosing the electors. The method is now uniform 

1 See Publications of American Academy, No. 9, cited in Stevens's Sources 
of the Constitution, p. 154. 

2 Federalist, No. 67 ; see also No. 1 of the Federalist, and Wilson in the 
Pennsylvania Convention ; Elliott, vol. ii., cited by Bryce, vol. i., p. 41. 



124 The American Republic 

throughout the States. They are elected in each State 
on a common ticket, all the electors being voted for by 
The states a ^ t ^ ie voters > generally under manhood suf- 
Determine frage. 1 Formerly the States chose the electors 
Method of m various ways, — some by the legislature, some 
choosing the directly by the people on a common ticket, and 

some by the people in districts. In 1824, 
eleven of the twenty-four States elected by districts. By 
1832, all but South Carolina and Maryland used the 
method of electing by popular vote on a general ticket. 
South Carolina continued to elect her Presidential electors 
by the legislature until the Civil War. The feeling that 
the people had been deprived of their choice in 1824, and 
the Democratic movement under Jackson, leading to a 
change in the party system, had led in the direction of 
the more popular plan for the election of the President. 
In 1 891, the Democratic Legislature of Michigan passed a 
law providing for the district plan of election. Michigan 

is usually a Republican State, but in the elec- 

The District J r ' 

plan Revived tion of 1890, by a "landslide " in politics, the 

in Michigan, Democrats carried the State and secured a ma- 
1891. 

jority of the legislature. In view of the ap- 
proaching presidential election of 1892, they provided 
that Michigan should elect her Presidential electors by 
districts, as in this way the Democrats, who expected to 
lose the State in 1892, would be sure of electing at least 
a few of the electors from the various districts. It is sel- 
dom a party carries all of the Congressional districts of 
a State. The Republicans contested this Democratic 
law before the courts, but both the Supreme Court of 
Michigan and then the Supreme Court of the United 
States — the majority of each Court being Republicans — 
decided 2 in favor of the constitutionality of the Michigan 

1 There are constitutional restrictions in some Southern States barring 
a large part of the colored vote. 

2 The decision does not support the right of a State to provide that all 



The Presidency 125 

law. It is, therefore, the law that the States may deter- 
mine the method of choosing the electors. The legis- 
lature might itself choose the electors, or authorize the 
governor to appoint them, or cause them to be selected 
in any manner it may deem best, by districts, by a gen- 
eral ticket, by a limited or by a universal suffrage. The 
States may also determine the qualification of the electors, 
except the qualification named in the Constitution, — that 
they "shall hold no office of profit or trust under the 
United States." 1 It is a party custom that has brought 
us to the uniform system of electing on a general ticket. 
To make sure of uniformity the States would have to 
adopt a constitutional amendment. The Michigan law 
provided for choosing the Congressional electors by Con- 
gressional districts, and the Senatorial electors by districts 
created for that purpose. The law was accompanied by 
an apportionment act (a gerrymander), and thus the two 
laws together brought the electoral vote of the State 
under the influence of the "gerrymander." President 
Harrison felt that this would bring the three great de- 
partments of the Government within the grasp of the 
gerrymander and would promote "disgraceful partisan 
jugglery" in the choice of the President, and he called 
attention to the necessity of reform in his message of 
December 9, 1891. 2 

In recent years much dissatisfaction has arisen with 
the Electoral College, and there is considerable demand 
for its abolition. Since it has been virtually Proposed 
superseded in party practice it is looked upon changes in 

1 . r 1 • , i =, Methods of 

as a cumbersome piece of machinery which Electing the 
might as well be abandoned. Three plans President. 

the electors should be elected by a single district, regardless of the rights 
of the other districts. In the decision rendered by Chief Justice Fuller, a 
careful consideration was made of the various methods used by the several 
States at different times previous to the decision. See United States 
Supreme Court Reports, 146. 'Constitution, Art. I., Sec. 1. 

9 Richardson's Presidents' Messages, vol. ix., p. 208. 



126 The American Republic 

have been proposed in substitution, each of which, it is 
claimed, is fairer, more direct, and more democratic: 

i. The District Plan. — This is the "Michigan Plan," 
to which we have referred. It involves the choice of an 
The District elector for each Congressional district and two 
Plan. for eac h State at large. 

This would be very much like electing the President 
by the two Houses of Congress, except that the Sena- 
torial electors would be chosen by a direct vote of the 
people, and all of them would be chosen especially and 
only for the purpose of choosing the President, while the 
members of Congress are chosen for other purposes. 

2. The allotment of electoral votes in each State to the 
candidates in proportion to the popular vote received by 
each, — the proportion to be determined by the 
Proportional P ro P er returning board. Let the presidential 
Represen- election be held on the same day in all the 
States; let the States be allotted electors as 
they now are, and in ascertaining the result let each can- 
didate voted for be entitled to have counted in his favor 
a number of electoral votes corresponding to the number 
of popular votes received by him. This plan would not 
impair the rights and powers now possessed by the States 
in the election of the President ; nor would it involve 
election by a majority or plurality of all the popular vote 
cast in the United States. This would not disturb the 
"compromises of the Constitution" by swamping the 
small States and reducing them to insignificance, for each 
State would still be awarded three electoral votes, two 
for its Senators and one for its Representative, regardless 
of its number of inhabitants. It would appear useless 
under this plan to vote for electors, for a State election 
board could allot the vote of the State to the respective 
candidates according to mathematical proportion. 1 This, 
like the District Plan, involves the retention of the 

1 See Prof. J. R. Commons's " Proportional Representation " for an 



The Presidency 127 

Electoral College but it provides also for more accurate 
proportional representation. 

3. The abandonment of the Electoral scheme entirely, 
by providing for the choice of the President by direct 
popular vote. If the McKinley majorities 
from the States carried by the Republicans Direct 

footed up more than the Bryan majorities from Popular 
the Democratic States, Mr. McKinley would 
be declared elected. For electoral purposes under this 
plan the relation of the States to the Federal Government 
would be the same as that of the counties to a State. 
Any vote anywhere would count the same in the aggre- 
gate, and, therefore, in determining the result. This 
would involve an abandonment of an election by States, 
and would consider the country for the purpose of the 
presidential election as a consolidated nation, to be gov- 
erned by the simple numerical majority. 

A few words as to proposed changes. 

Under the present system the party electors in a State 
are usually all lost or won together. 1 It is senseless to 
scratch an elector for personal reasons, for if wh 

that were generally done by the party voters it change is 
would result merely in losing an electoral vote 
in the State for the candidate of the voters' choice. The 
first two plans proposed, while retaining the Electoral 
College, would allow the minority some representation 
and make the College more representative of the popular 
vote. For illustration, in 1884, the outcome of a hotly 

elaboration of this principle. Also John G. Carlisle in the Forum, No. 24, 
p. 651, " Remedy for Dangerous Defects in Election of the President." 

1 When a State is carried by a very close vote, it sometimes happens that 
one or two electors of the defeated party may win. Under the Australian 
system of voting, many voters have been known to stamp merely the first 
elector on their party list under the mistaken supposition that by so doing 
they were voting for the whole list. In this way, and sometimes for per- 
sonal reasons, some electors receive more votes than others. The reason- 
able expectation is that they should all run together. 



128 The American Republic 

contested Presidential election depended upon the out- 
come in the State of New York. Whichever party carried 
that State would win. About 1,125,000 votes were cast 
in the State. The Democratic candidate, Mr. Cleveland, 
received, say, 563,000 votes, while the Republican candi- 
date, Mr. Blaine, received 562,000 votes. Mr. Cleveland 
received only about one thousand plurality in the State, 
but he secured all of the thirty-six electoral votes from 
New York, while Mr. Blaine received none. The 562,000 
Republican votes went for nothing. They could not go 
to help out the party cause in other parts of the Union. 
If the thirty-six New York electors could have been 
divided between the parties somewhat in proportion to the 
popular vote, the Democrats could have elected not more 
than nineteen electors, while the Republicans would have 
chosen at least seventeen. Then the 562,000 minority 
votes would have had some voice and representation in 
the Electoral College. Either the Proportional or the 
District plan would break up the solidarity of the State. 
The present plan, by which the State may throw its whole 
weight into one side of the scale, magnifies the importance 
of the State as such. It provides for election by States. 
It is in harmony with the original federal idea of the 
Constitution that the States should be the agencies in 
the election of the President, though on a proportional 
basis. This is clearly shown in the mode provided in the 
eventual election of the President when the election is 
thrown into the House, where each State delegation 
casts one vote. The States, especially the large ones, will 
hardly give up their preponderant importance in the 
present plan of electing the President. But experience 
has shown that the present plan concentrates the struggle 
in the doubtful States, especially in the large doubtful 
States, for the party carrying these will carry the elec- 
tion ; while in the States safely assured to either party 
the campaign is listless and lifeless and without instruc- 



The Presidency 129 

tion. If the forces of boodle and corruption have but to 
carry a few States in order to win they are encouraged in 
their work, for, in order to win, they have but to concen- 
trate their energies. In this way the political electorate 
of New York and Indiana have especially suffered from 
pollution and corruption during past presidential cam- 
paigns. If the proportional plan of election were sub- 
stituted every vote would count in every State. The 
Republicans would be encouraged to make a campaign in 
Texas in the hope of securing a few electors, and the 
Democrats would make a similar effort in Iowa or Ver- 
mont, and men of all parties would be directly interested 
throughout the Union in preserving the purity and safety 
of the ballot everywhere. 

There is one important if not decisive objection to the 
District Plan. That is, it would lead to still greater 
temptation to the party managers within the 

10 ■ 1 7 1 i- ,. Objection to 

several States to gerrymander the electoral dis- the District 
tricts. 1 If the evils of the party gerrymander Plan - The 

. x . . Gerrymander. 

can be obviated and fair proportional represen- 
tation provided for within all the States, the District Plan 
of electing the President would seem to be preferable to 
the present one. It would be as just, more democratic, 
and quite as expedient ; and the change would probably 
be more feasible than that of direct election by the 
people in which the decision would depend 

■ - . A President 

upon the aggregate majorities from the various may be 

States. Elected in 

Spite of 

A President has frequently been elected who an Adverse 
has not received a majority of the popular M ^°orit ar 
vote. 8 

1 See reference to President Harrison's message, p. 125. 

9 In 1824, Jackson had 152,901 votes while Adams received only 114,000. 

In the College, Adams had 84 and Jackson 99. The combined vote of the 

candidates opposed to Adams was 247,000. Thus Adams received neither 

a majority nor a plurality of the popular vote. His election by the House, 

9 



130 The American Republic 

Twice an election has been thrown into the House of 
Representatives: in 1800, when Jefferson was first elected, 
Elections and in 1824, when John Quincy Adams was 
by the elected. In such a case, all the members of 

House of 

Represen- the House from a State having but a collective 
tatives. vote, if they are equally divided on the candi- 

dates the vote of the State is lost. 1 In 1824, Jackson had 
ninety-nine electoral votes, while Adams had 

In 1824. . . 

only eighty-four. Clay had thirty-seven, and 
Crawford forty-one. The election went to the House, 
where, by the influence of Clay, who could not be voted for, 
being fourth on the list, John Quincy Adams was elected. 
This was thought to thwart the will of the people, and 

voting by States, gave rise to the cry that the people had been deprived of 
their choice. 

In 1856, Buchanan had 1,838,000, Fremont 1,341,000, and Fillmore 
874,000 of the popular vote. Buchanan thus fell 188,000 votes short of 
half ; or, there were 377,000 more votes cast against him than for him. 
Yet Buchanan received 174 electoral votes, Fremont 114, Fillmore 8. 

In i860, Lincoln had 1,866,000, Douglas had 1,376,000, Breckinridge 
had 849,000, Bell had 588,000. Lincoln fell 473,000 short of a majority 
over all, while there were 949,000 more votes against him than for him. 
Yet of the electoral vote Lincoln had 180, Douglas had 12, Breckinridge 
had 72, Bell had 38. See Stanwood's History of the Presidency for cases 
in point since i860. 

1 In 1801 nine votes in the House were required to elect. The House 
had to choose between the two Republican candidates, Jefferson and Burr. 
Jefferson controlled eight votes and Burr six, while two States, Vermont 
and Maryland, were equally divided. Party spirit was very bitter at the 
time and some of the Federalists advised that the country be left without a 
President rather than consent to the election of the hated leader of their 
opponents ; while others were advising the election of Burr in order to bring 
about the disappointment and discomfiture of the Jeffersonian Democrats. 
In consideration of pledges from Jefferson, as Bayard testifies, the Federalist 
member from Vermont and the two Federalist members from Maryland 
(Baer and Craik), and Bayard, a Federalist of Delaware (who controlled the 
single vote of that State and led this Federalist group), agreed to withdraw 
their opposition to Jefferson's election, and these four Federalists voted 
blank on the thirty-sixth ballot, and thereby permitted their Republican col- 
leagues from Vermont and Maryland to give the votes of these two States 
to Jefferson, and this elected him by the votes of ten States. (See Isaac 
Jenkinson's Life of Burr, chapter v.) 



The Presidency 131 

it was charged that a corrupt coalition was made between 
Adams and Clay. Clay was afterwards made Secretary 
of State by Adams, which gave color to the charge, but 
there was not a bargain, corrupt or otherwise, between 
the two men. But Jackson and his friends always felt 
that the people had been deprived of their choice, and this 
election tended to increase the democratic movement for 
a direct popular choice of the electors and for a more 
popular system of party nominations. By the time of 
Jackson's second election, in 1832, the representative 
party convention system was coming into use. 

In 1876, there was a still more serious dispute over the 
presidential election, — a dispute which clearly illustrated 
an almost fatal weakness in the system of elect- 

Contested 

ing a President by the Electoral College. In Election 
that election there were 369 electoral votes, 185 of 1876. 

being necessary to a choice. The Democratic candidate, 
Mr. Tilden, carried, without dispute, 184 votes, lacking 
only one of enough to elect ; the Republican candidate, 
Mr. Hayes, had 163 votes. In four States, — Oregon, 
Florida, South Carolina, and Louisiana, with twenty-two 
electoral votes, there were disputed returns. If in any 
one of these States the Democratic Electors were found 
to have been chosen, Mr. Tilden would have a majority 
in the College and would be elected ; while the Republi- 
cans in order to elect their candidate must have all of the 
twenty-two. Of course, the Republicans, as loyal party 
men, laid claim to all these doubtful States, and the 
Democrats did the same, though the Democrats would 
have been satisfied with only one. In the disputed States 
the two sets of electors met, voted, and sent up the certi- 
fied returns to Washington. In Congress the Republicans 
had a majority in the Senate, while the Democrats had a 
majority in the House. As to counting the electoral 
vote the Constitution says : "The President of the Senate 
shall, in the presence of the Senate and House of Repre- 



132 The American Republic 

sentatives, open all the certificates and the votes shall then 
be counted," Who shall do the counting? The Repub- 
licans contended that the Vice-President (Senator Ferry, 
of Michigan, a Republican) should determine what votes 
should be counted. But the Democrats insisted that the 
two Houses, voting separately, had always determined 
the validity of electoral votes, and as Congress was 
called upon by the Constitution to witness the count, 
it was reasonable to conclude that Congress itself was 
the responsible counting body. This might do, pro- 
vided the two Houses were in agreement, with the same 
party in control of both, but in this case they were in 
disagreement and a deadlock between the two Houses 
would be the result. For it was understood, and it 
had always been so, that in such cases the two Houses 
would vote from party motives and according to party 
interests. 

To break this deadlock between the two Houses in 
1876, in order that some election might be made, the 
_~ „, , . leaders on each side agreed to the establishment 

The Electoral ° 

commission by law of an Electoral Commission, to which 
of 1876. should be referred all the disputed cases. The 

Commission was made to consist of five Senators, five 
Representatives, and five members of the Supreme Court. 
The Republican Senate elected to the Commission three 
Republicans and two Democrats ; the Democratic House 
appointed three Democrats and two Republicans. So 
far there was a party tie. From the Supreme Court 
there were to be appointed, according to the law, two 
Republicans and two Democrats, and these four were to 
elect a fifth. Justice Davis, a liberal Republican, much 
inclined at this time in his party relations toward the 
Democrats, would probably have been elected as the 
fifteenth member of the Commission had he not just 
accepted an election to the United States Senate from 
the State of Illinois. This allowed the choice as the fifth 



The Presidency 133 

member of the Supreme Court to fall upon Justice Brad- 
ley, a Republican. 

"This choice practically settled the result, for every vote 
given by the members of the Commission was a strict party 
vote. All the points in dispute were settled by a vote of eight 
to seven in favor of the returns transmitted by the Republican 
Electors in the four disputed States, and Mr. Hayes was ac- 
cordingly declared elected by a majority of 185 electoral votes 
against 184." x 

Mr. Tilden and the Democrats accepted the result, 
though there was much dissatisfaction and complaint. 
Some of the Democrats of the House attempted to pre- 
vent acquiescence in the result and the declaration of 
Hayes's election by a process of filibustering until after 
March 4th, but they were prevented from accomplish- 
ing their purpose by the decisions of the Speaker, Mr. 
Randall. 2 There was much excitement and uncertainty 
throughout the country and not a little danger of civil 
commotion, if not of civil war, so great was the party 
stake involved in the decision. The Constitution does 
not itself expressly provide for the settlement of such a 
dispute, but it vests in Congress the power to 
make provision by law. Of the two opposing Presidential 
contentions at the time, one held that the Con- Elections. 

1r . , , f 1 . r , Act Of 1887. 

stitution itself provided for the counting of the 
electoral votes, the other that the Constitution merely 
vests in Congress the power to provide by law for the 
count. The latter view is now generally accepted. 3 

The result of this dispute was the passage of an act, — 
though tardily passed ten years later, on February 3, 1887, 

1 See an article on " A Crisis in Our Country's History," Century Maga- 
zine, Nov., 1901. 

8 See page 277. 

3 Burgess, Political Science, vol. ii., pp. 228-229 ; Congressional Record, 
vol. xvii. 



134 The American Republic 

— providing a process of settling disputed presidential elec- 
tions. The act is intended to provide against the recur- 
rence of the danger of 1876. The act provides that the 
President of the Senate, in the presence of the two 
Houses, shall open the certificates of the electoral votes 
of the States in alphabetical order ; these shall be handed 
to the tellers to be read; the President of the Senate 
shall call for objections, if any; these objections shall be 
in writing without argument, signed by at least one mem- 
ber from each House; when an objection is made, the 
Houses shall separate to consider and decide upon the 
objection ; no electoral vote from any State may be re- 
jected from which but one return has been received un- 
less the two Houses acting separately so decide, and then 
the rejection is made by the concurrent resolution of both 
Houses when they again meet together. The time of 
casting the electoral vote is changed from the first 
Wednesday in December to the first Monday in January. 
This is for the purpose of allowing the excitement follow- 
ing the election to subside, and to give the States more 
time to settle any disputes which may arise. The electoral 
votes are to be counted by Congress on the second 
Wednesday in February. The act provides that tribunals 
appointed by and in each State shall determine what 
electoral votes from the State are legal votes, and the 
determination of the State tribunal shall be considered 
final. When there are two or more sets of tribunals in a 
State and they send in conflicting returns, that return 
shall be counted which the two Houses acting concur- 
rently shall accept ; when there is one State government 
and two returns are sent in, that one shall be counted 
which is supported by the Executive of the State, unless 
both Houses, acting separately, shall decide that it is not 
the lawful vote of the State. If the State has appointed 
no such tribunal, the two Houses of Congress shall de- 
termine which votes are legal, if two sets of returns ap- 



The Presidency 135 

pear. If the Houses differ, the vote of the State is lost. 
This throws the responsibility for the settlement of dis- 
puted elections within a State back upon the State itself. 
If a State does not settle its own dispute it runs the risk 
of losing its vote. It must settle its dispute in accordance 
with a law passed before the electors are chosen, and the 
decision must be made at least six days before the meet- 
ing of the electors. Congress can then not subvert the 
decision so reached, except in the cases described. Un- 
fairness may be done in the State ; but, as Mr. Bryce says, 
"unfairness is better than uncertainty," in such a case. 1 

Both the President and the Vice-President must be 
native-born citizens of the United States, thirty-five years 
of age, and have been for at least fourteen years n ,. c . 

& J Qualifications 

residents within the United States. "Citizens of the 

of the United States at the time of the adop- President - 
tion of this Constitution " were made eligible. This was 
inserted in the Constitution out of regard for the great 
men like Hamilton and Wilson and others who, though 
not natives, had with patriotism and self-sacrifice aided 
in establishing our independence and in making our Con- 
stitution. "Native born" is interpreted to mean born 
within the jurisdiction of the United States. This may 
be on American vessels while in foreign ports, or in 
American embassies and consulates, all of which, by the 
principle of ex-territoriality, are considered as within the 
United States and under the jurisdiction of our laws. 
Therefore children born to our ambassadors, consuls, and 

1 The bill proposed by Senator Morton, of Indiana, in 1875, provided 
that a concurrent vote of both Houses should be required to throw out a 
disputed return. In case of double returns from a State, that one should 
be counted which the two Houses, voting separately, decided to be the right 
one. In case the Houses failed to agree, the vote of the State was lost. 
The Democrats could have seated Tilden under this in 1876, as the votes 
of the four disputed States could not have been counted. See Stanwood's 
History of the Presidency, pp. 452-456. See, also, Burgess, Political Science, 
vol. ii., chap, iii., for a full and able discussion of the law of 1887. 



136 The American Republic 

naval officers while abroad are eligible to the offices of 
President and Vice-President. The same is true of chil- 
dren born to American citizens while travelling or so- 
journing in foreign countries. An American does not 
lose his citizenship by travelling or by a temporary resi- 
dence abroad. The full rights of citizenship descend to 
the children, whether born at home or abroad. On the 
other hand, children born in America to foreign repre- 
sentatives, " extra-territorial persons," would not be 
eligible. Whether a natural-born citizen who afterwards 
became a naturalized citizen of another country would be 
eligible to the Presidency is a question. He probably 
would not be, as the President must be a citizen as well 
as native-born. "The President is the representative of 
the interests of the country against foreign countries. 
His entire interests should be with his own country." 1 

"The President shall, at stated times, receive for his 
services a compensation, which shall neither be increased 
salary of the nor diminished during the period for which he 
President. shall have been elected, and he shall not receive 
within that period any other emolument from the United 
States" or from any State. 3 The salary, formerly 
twenty-five thousand dollars, is now fifty thousand dol- 
lars a year, together with the use of the White House. 

The person of the President is inviolable. "He can- 
not be arrested, or restrained of his personal liberty by 
The anybody for anything, not even for the com- 

Presidentis mission of murder. He is responsible only to 
from Legal the Senate by impeachment. During his im- 
Process. peachment trial he cannot be arrested, or in 
any manner restrained, nor forced to appear in person 
before the tribunal, nor to give testimony, nor be de- 
prived of any of his powers as President. Such are the 
postulates of political science which the Constitution im- 

1 Burgess, Political Science and Constitutional Law, vol. ii. , p. 242. 
8 Constitution, Art. II., Sec. 1, CI. 7. 



The Presidency 137 

plies. It is impossible to make the supreme executive 
head of the government subject to process without ulti- 
mately destroying all power to execute process, — i. e. y 
without disorganizing the Government. It is impossible 
to make the executive head of the Government of the 
United States subject to process without destroying the 
unity of the executive power, without placing a part of 
the power to execute the laws under the control of some 
other person than the President ; and this the Constitu- 
tion forbids, in that it vests the whole executive power 
in the President. It is impossible to execute any process 
upon the President of the United States should he resist 
it, for the Constitution makes the whole machinery of 
execution subject ultimately to his command. More- 
over, the Constitution vests in the President the un- 
limited power of pardon, except for impeachment. He 
could, therefore, if made subject to the ordinary process 
of law, free himself by pardoning himself. 1 

This exemption from process of the Courts is only 
temporary, the right of prosecution is only suspended. 
Upon his retirement or removal from office, the ex- 
President becomes immediately liable to prosecution and 
punishment for every crime committed while in office. 

The President is removable only by impeachment. In case 
of his removal by impeachment, or in case of his death, re- 
signation, or inability to discharge the duties and The vice . 
powers of his office, the Vice-President becomes President. 
President. The Vice-President is chosen in the same way 
as the President, and his qualifications are the same. 

The Vice-President has but two functions, — to preside 
over the Senate and, in the constitutional emergency, to 
succeed to the Presidency. He does not ap- Functionsof 
point the committees ; they are elected by the the vice- 
Senate. He is not a member of the Senate, and 
cannot vote except to give a casting vote in case of a tie. 

1 Burgess, Political Science, vol. ii. , pp. 245-246. 



138 The American Republic 

Politically, the office of Vice-President is of but little 
importance, and it has been said that to elect a capable 
man to the Vice-Presidency is merely to retire him into 
" harmless and innocuous obscurity." The party con- 
ventions in making nominations to this office generally 
use the place to placate a defeated faction in the contest 
for the presidential nomination, or to bring on to the 
ticket a representative of a certain section of the country 
other than that of the presidential nominee. The ability 
and public record of the nominee are not duly considered, 
and the result is that obscure and second-rate men are 
apt to be nominated for Vice-President. 1 The office is an 
important one in its possibility, and no man that the party 
and the country are not willing to have for President 
should ever be named for Vice-President. Five times in 
our history the President has died in office, and the Vice- 
vice. President has succeeded to his place. Tyler 
presidents took the elder Harrison's place in 1841 ; Fill- 

Succeeding 

to the more succeeded to Taylor in 1850, Johnson to 

Presidency. Lincoln in 1 865, Arthur to Garfield in 1881, 
and Roosevelt to McKinley in 1901. In each of two 
cases, — of Tyler and Johnson, — the succeeding Vice-Presi- 
dent seriously disappointed and disrupted his party. To 
"Tylerize" or to " Johnsonize " is to desert the party 
that elevated one to his office. But this should not be 
understood to mean that Tyler and Johnson were political 
apostates, that they had deserted their principles. Tyler 
had never been a Whig, nor Johnson a Republican. The 
Whigs, without publishing a platform of principles, took 
up Tyler in 1840, because he had broken with Jackson 
and the regular Democrats. Tyler was a representative 
of the extreme States' rights Democracy of the South 
who had resigned his Senatorship rather than obey the 
instructions of the Virginia legislature to support Jackson. 
The Whigs wished to attach the Tylerites to the support 

1 See Bryce, vol. i., p. 300. 



The Presidency 139 

of Harrison. " Translated into the terms of the politics 
of continental Europe, the Whig ticket represented a 
union of the right and the extreme left against the 
centre." 1 In 1864, the Republicans put Johnson, a 
Democratic Unionist of the South on their ticket, in order 
to make their party a national-union party, to avoid the 
charge of sectionalism, and to draw Middle-State support. 
When these two men came to the chief office they in- 
evitably disappointed the main body of the men who had 
elected them. Party tickets are not now so incongruous. 
Yet even in late years it has been thought "good politics" 
to go so far in bidding for support or in placating a de- 
feated faction as to place upon the ticket for Vice-Presi- 
dent a candidate who on public policies and in political 
tendencies differs very materially from his party chief. 
When party managers nominate a Vice-President, they 
must be ready for the utmost possible. The men who 
defeated General Grant and nominated Garfield did not 
expect to make Mr. Conkling's first lieutenant (Arthur) 
President of the United States. If Mr. Cleveland had 
died, either Mr. Hendricks or Mr. Stevenson would have 
reversed his financial policy. The clever gentlemen who 
planned to shelve Mr. Roosevelt by placing him where he 
could not circumvent their schemes did not know what 
fate had in store. President Roosevelt, who has lately 
succeeded to his high office under such direful circum- 
stances, stood in complete party and public accord with 
his predecessor. His nomination to the Vice-Presidency, 
one of the most fitting ever made, exemplifies very fully 
his own characterization of the office : 

' ■ The Vice-President should, so far as possible, represent 
the same views and principles which have secured the nomina- 
tion and election of the President, and he should be a man 

1 Theodore Roosevelt, American Ideals, p. 228 ; Review of Reviews, 
Sept., 1896. 



140 The American Republic 

standing well in the councils of the party, trusted by his fellow 
party leaders and able in the event of an accident to his chief 
to take up the work of the latter just where it was left. . . . 
One sure way to secure this desired result would undoubtedly 
be to increase the power of the Vice-President. He should 
always be a man who would be consulted by the President on 
every great party question. It would be very well if he were 
given a seat in the Cabinet. It might be well if, in addition 
to his vote in the Senate in the event of a tie, he should be 
given a vote, on ordinary occasions, and perchance on occa- 
sions a voice in the debates." ' 

The Vice-President under Mr. Roosevelt is his Secre- 
tary of State, 9 but in case of his re-election there would 
be nothing in the way of his calling his elected Vice- 
President to a seat in his Cabinet councils. John Adams, 
a man of energy and action, complained of the office of 
Vice-President while he held it as one wholly insignifi- 
cant, "the only situation in the world where firmness and 
patience were useless," yet he was consulted by Wash- 
ington in many of the most important measures of State, 
in the same manner as were the heads of departments. 8 

A vacancy in the presidential office may occur in several 
ways: (a) By death, {b) By impeachment, (c) By resigna- 
tion. The President may resign at discretion. He would 
The address his resignation to Congress. The 

Presidential evidence of resignation is his letter ' ' delivered 

Vacancy. -^ ^ offi(;e q{ ^ Secretary of State." * 

(d) By inability to discharge the duties and powers 
of the office. No one is authorized to determine when 

1 American Ideals, pp. 231-232. 

2 By " Vice-President " here I mean the one who would stand instead of 
the President in case of the latter's death or disability, not the Senator who, 
as President pro tern, of the Senate, performs the Vice-President's chief 
function of presiding over the Senate. 

3 Adams's Works, vol. ix., p. 573 ; Lolabel House's Twelfth Amendment, 
p. 38. The influence of the Twelfth Amendment in affecting the incumbent 
of the Vice-Presidential office is thoughtfully considered in this thesis. 

4 Statutes, Act of 1792, March 1. 



The Presidency 141 

disability exists. Professor Burgess suggests that this 
should have been left to the two Houses. 1 In 1881, 
President Garfield lay at the point of death for more than 
two months, quite unable to perform the duties of his 
office. Vice-President Arthur did not succeed to the 
office during this inability of the President; if he had 
claimed the right to do so and the claim had been tested 
in law there might have been difficulty and embarrass- 
ment. The secretaries of President Garfield conducted 
the Executive office. 

(e) By refusal of the newly elected President to accept 
the office. This has never occurred and is not apt to 
occur. 

In case a Vice-President who may have succeeded to 
the Presidency should die (which has never happened), it 
was formerly provided (by a law of 1792, not 
by the Constitution) that the President /n? tern. president!^ 
of the Senate should succeed to the place as succession 

-r» • 1 t- m- ,1 t. .1 Actofi886. 

acting President. Failing the President pro 
tern, of the Senate, the Speaker of the House succeeded. 
There were three objections to this: 1. If the President 
and Vice-President should both die during the interim 
between the expiration of one Congress and the meeting 
of the next, there might be no President of the Senate 
and there certainly would be no Speaker of the House. 
2. If the Presidency were filled by either of these officers, 
it would be placing a member of the legislative depart- 
ment in the executive chair. Thus the Executive would 
be chosen by the legislative department and he would feel 
his dependence on them. Even this temporary subordi- 
nation of the Executive to the Legislative would be con- 
trary to the spirit and purpose of independent and 
co-ordinate branches of government. 3. By this system 
of succession, a President of the Senate or a Speaker of 
the House of a different party from the chosen President 
1 Vol. ii., p. 24. 



142 The American Republic 

and Vice-President might come into power. This might 
lead to a reversal of the policies voted for by the people. 
For these reasons and in order to make sure that not even 
a temporary vacancy should exist in the office of Presi- 
dent, the Presidential Succession Bill was enacted in 1886, 
providing that in case of the death both of the President 
and Vice-President the Cabinet officers shall succeed to 
the Presidency in the following order: 

1. Secretary of State. 

2. Secretary of the Treasury. 

3. Secretary of War. 

4. Attorney-General. 

5. Postmaster-General. 

6. Secretary of the Navy. 

7. Secretary of the Interior. 

8. Secretary of Agriculture. 1 

These Cabinet officers, of course, before they can be 
eligible to the succession, must possess all the constitu- 
tional qualifications. When the President or Vice-Presi- 
dent again become qualified the Cabinet officer acting is 
dispossessed, 
classes of The powers and duties of the President may 

Presidential fog classified as follows \ 
Duties. 

1. Purely i. Purely Executive. — These include: (a) his 

Executive. p OW er to appoint executive officers; (b) his 
power "to take care that all laws be faithfully executed.' ' 
He is enabled to do this by his authority to commission 
all the officers of the United States, to appoint to execu- 
tive offices and to fill vacancies, and by his authority as 
commander-in-chief of the army and navy. Executive 
departments are created to aid him and to represent him 
in thousands of acts to which his personal attention can- 
not be called. 

This duty is not limited merely to the enforcement of 
acts of Congress and of treaties, but it includes "the rights, 

1 This order is the order of the creation of the departments. 



The Presidency 143 

duties, and obligations growing out of the Constitution 
itself, our international relations, and all the protection 
implied by the nature of the Government under the 
Constitution." 1 

2. Diplomatic. — These include : (a) his power to make 
treaties, by and with the advice and consent of the 
Senate ; (b) the power to appoint ambassadors, 2 . Dipio- 
consuls, and other commissioners and represen- matic. 
tatives of the nation to foreign countries provided for by 
law; (c) the power to receive foreign ambassadors and 
representatives. 

3. Advisory. — The advisory powers of the President 
consist in his power and duty : {a) to recommend meas- 
ures to Congress ; (b) to inform Congress on 3 . Advisory 
public questions and on the state of the Union. Duties. 

His annual message to Congress submitted at the 
opening of the regular session, the first Monday in every 
December, is the means by which he performs these 
functions. He may at any time also submit a special 
message urging on Congress a particular course in legis- 
lation. 

4. Legislative. — The President's legislative powers are: 
(a) the power to convene both Houses of Congress in 
extraordinary session ; ( b) the veto power. 

r^i . . . . . 4- Legislative 

This is a negative power ; it is not a power to Functions 
legislate, but to prevent legislation; (c) the ofthe 

S '. r . & . W , President. 

treaty-making power, since treaties are the 
"supreme law of the land." 

5. Military. — The military power of the President con- 
sists in his being commander-in-chief of the National army 
and navy, and of the militia of the several ^ Military 
States when called into the service of the Power of the 
United States. His war power makes the 
President a commanding figure. 2 By the Act of Feb- 

1 In re Neagle United States Reports, 135. Boyd's Cases, p. 332. 

2 See p. 176 for discussion of the war power of the President. 



144 The American Republic 

ruary 28, 1795, the President is authorized to call forth 
the militia of the States, through their officers, in order 
to suppress insurrection, or to repel invasion, and the 
President is to judge of the emergency; to subject the 
militia to the President's command and to martial law 
and punishment. These conferred powers have been 
sustained by the Court. 1 The nation, through the 
President, controls the State militia in a military ex- 
igency, leaving to the States only the appointment of 
the officers and the training of the militia according to 
the discipline prescribed by Congress. 

6. Judicial. — The President exercises judicial power, or, 
6. judicial at least, power over the Judiciary, when he 
ofthe* 10 " 8 appoints the judges of the Supreme Court and 
president. all the inferior federal judicial officers. 

In this classification, the powers of the President are 
not intended to be strictly defined. It will be noticed 
that some of the presidential powers may fall in two, or 
more, of the classes named. For instance, when the 
President makes a treaty he exercises not only diplomatic 
power but legislative power also, and when he appoints a 
judge he performs a purely executive act with a judicial 
bearing. 

Of these various powers so classified a few need to be 
treated at some length. 

By his power to call Congress into extraordinary session 

and to communicate his message, the President may take 

the initiative in legislation. It would be legal 

president's for him to construct and present regular bills 

Legislative to Congress ; but he does not do this formally 

Power - ill- 1 

through his executive departments, because 

our usage and laws do not provide executive organs for 
"presenting, explaining, defending, and managing gov- 
ernment bills in Congress." 2 This custom might have 

1 See Houston vs. Moore, 5 Wheaton, 1 ; Martin vs. Mott, 12 Wheaton, 19. 
5 Burgess, Political Science, vol. ii., p. 254. 



The Presidency 145 

grown up under our Constitution, but it has not hap- 
pened so. If Hamilton, in defending his financial meas- 
ures before Congress in 1790, had appeared in person 
instead of sending a written report, it is conceivable that 
the precedent might have been followed, and the Cabinet 
ministers might have been allowed the privilege of de- 
fending their measures on the floor of either House. As 
it is, they rely now, for the promotion of their measures, 
on their written reports and public recommendations, on 
private conferences with the committees, and on personal 
conferences and influence with the party and committee 
leaders of the houses. Certain Congressional leaders be- 
come, in a way, the spokesmen for the executive policy, 
and through them the President exercises great influence 
in legislation. This informal private contact with Con- 
gress is often more effective than the legal and more public 
process would be. Very frequently the public message of 
the President, after being respectfully read and printed, is 
given no further attention, while Congress pursues its own 
course. Especially is this likely to be the case if the 
Congress is in party opposition to the President. 1 

The Constitution permits the President to veto a bill 
by returning it, with his objections, to the House in 
which it originated. If the bill upon recon- The 

sideration is not again passed by a two-thirds Presidential 
vote of each House it fails to become a law. 
If it is so passed it becomes a law despite the veto. A 
two-thirds vote of each House, means two thirds of a 
quorum, not two thirds of all the members elected to the 
body, the members always being required in such cases 
to go upon record by a Yea and Nay vote entered upon 
the Journals. This gives the President large legislative 
power; for, while he may not be able by means of the 
veto to secure the passage of laws which he likes, he 
may prevent the passage of those which he dislikes. If 

1 See also p. 302 in the chapter on the House of Representatives. 



146 The American Republic 

any bill be not returned by the President within 
ten days (Sundays excepted) after it shall have been 
presented to him, it becomes a law just as if he had 
signed it, unless Congress by adjournment prevents its 
return, in which case it shall not be a law. This gives 
the President a chance to defeat a bill by what is called 
The "Pocket a "pocket veto." The "pocket veto" can 
veto." operate only in the case of bills sent to the 

President within ten days of Congressional adjournment. 
If he retain such a bill (figuratively, in his pocket), 
neither giving it his sanction by signing it, nor withhold- 
ing his sanction in returning it to Congress, the bill is 
defeated. The President is not bound to give reasons for 
defeating a bill by a pocket veto which he has not had at 
least ten days to consider. In a regular veto he is bound 
to give such reasons. The President employs the ' ' pocket 
veto " rather than the direct veto, either because he may 
not have time to prepare his veto message giving his 
public reasons against the measure, or because he may 
not wish to give Congress a chance to pass the bill over 
his head, or does not wish to allow his reasons against the 
bill to go upon record, together with the speeches and 
criticisms against these reasons ; that is, he may not wish 
to join issue before the public with the Congressional ad- 
vocates of the bill, — which might furnish campaign ma- 
terial for his opponents. The latter reason would operate, 
evidently, only when the President feels that his side of 
the case is weak before the country. The only way of 
offering public criticism of a President for a pocket veto 
is through the public press. In 1864, when President 
Lincoln defeated by a pocket veto the Reconstruction 
measure known as the "Wade-Davis plan," Senator 
Wade of Ohio, and Representative Davis of Maryland, 
the authors of the bill, united in a public criticism of the 
President in the public prints. This called out from 
President Lincoln a defence of his action. A pocket 



The Presidency 147 

veto does not always signify, by any means, that the 
veto is without good public reasons. 

In each of the thirteen Colonies the governor could 
veto any measure of the legislature ; and in each of the 
Colonies, except proprietary Maryland and the The Veto 
charter Colonies of Rhode Island and Con- in the 

necticut, the king could prevent a bill from be- 
coming a law, even after it had been approved by the 
governor ; and in all cases where the veto was exercised 
it was absolute. 1 The king of his own right, or through 
the royal government, had used the veto so repeatedly 
and so much to the vexation of the colonists, " refusing 
his assent to laws the most wholesome and necessary for 
the public good, forbidding his governors to pass laws of 
immediate and pressing importance," 2 that when the 
Colonies came to make State constitutions only one 
State, Massachusetts, allowed the veto power to its gov- 
ernor. 3 In later State constitutions, the governor's veto 
has been revived. The New York Constitution of 1777 
allowed the veto to a council, consisting of the governor 
and the Supreme Court judges. The royal TheRo al 
veto was more direct and frequent in the Crown Veto in the 
Colonies than in the others; but its use as 
against colonial legislation made the veto a real power to 
the colonists, while George III., in his attempt to revive 
the royal power in England, specifically refused to recog- 
nize the lapse of the royal veto in America. Thus a real 
veto power was "a fully recognized legal right down to 
the outbreak of the American Revolution, and naturally 
passed into the constitutional law of the States and the 
American nation. 4 Under the Confederation there was, 

1 Mason's Veto Power, p. 17. 

2 Declaration of Independence. 

3 Alex. Johnston Lalor's Cyclopedia of U. S. History and Political 
Science, art. on "Veto," Hildreth, vol. iii. , p. 377. 

4 Stevens, Sources of the Constitution, p. 158. See also pp. 27, 156, 157 
of this valuable work. 



148 The American Republic 

of course, no executive veto because there was no Execu- 
tive. In the Constitutional Convention of 1787, the 
The Virginia Plan proposed to give the veto to 

judiciary j-^g Executive "and a convenient number of 
proposals the national judiciary," unless overridden by 
in the con- a preponderant number of each branch. The 

stitutional r i 

convention, Judiciary was afterwards cut on from partici- 
I787, pating in the veto from the feeling that the 

judges should not pass on the law in the making, — 
should not be a part of the lawmaking body, — for when 
they came to judge the laws they would have a bias in 
their favor. It was desired also to keep the judges apart 
from executive influence. Hamilton and Wilson urged 
an absolute veto, in the belief that though it would be 
seldom or never used, it would serve to prevent rash 
legislation, but this was rejected by the States unani- 
mously. Some thought the President should have no 
negative at all, that he would be no wiser than the Sena- 
tors, while Dr. Franklin proposed that the Executive be 
allowed to suspend a legislative act for a while, but not 
to defeat it entirely. 

The veto power gives the American President much 
greater weight in legislation than the English king can 
The Royal exercise. In England, the royal veto power is 
Veto To-Day. obsolete ; the veto has not been exercised there 
since 1707/ now nearly two hundred years ago, though 
George III. claimed, but did not exercise, the right. It 
has been said the king would be bound to sign his own 
death-warrant if such a measure were sent up to him. 
In the theory of the English Constitution the king is a 
part of Parliament. "The King in Parliament " is the 
historic expression to indicate the whole legislature of 
the realm. As a part of Parliament the king is presumed 
by one of the fictions of the Constitution to have given 
his consent to whatever passes that body, although the 

1 When Queen Anne vetoed the Scotch Militia bill. 



The Presidency 149 

king never appears in Parliament except by his ministers, 
unless it be to open or dissolve that body in a speech from 
the throne. The real Executive in England — the Minis- 
try — sit in Parliament and urge and secure the passage 
of measures. Our President cannot do this. The veto 
which he exercises implies a power outside of the legis- 
lature. The people have bestowed this power upon the 
President as an individual agent for the purpose of check- 
ing hasty and ill-advised legislation, to protect the nation 
against abuses of legislative power. 

The veto power was but little used by the early Presi- 
dents. Washington vetoed but two bills ; his successors 
down to 1830 vetoed but seven. Jackson v Ho 
marked an epoch in the use of the veto. The Used by the 
earlier view was that the veto power was al- Presldents - 
lowed by the Convention of 1787 for the purpose of pro- 
tecting the Constitution and the Executive department 
from legislative encroachment. The President should 
see that no measure is passed that clearly violates the 
Constitution, or that would interfere with the indepen- 
dence of his office. Within these limits Congress was 
expected to determine the public policy to be marked 
out by legislation. The President was not to interfere 
with the making of the laws except for clearly defined 
constitutional reasons. The early Presidents up to 
Jackson's time, as we have seen, acted upon this theory 
of the veto. But Jackson used his veto to defeat, not 
merely measures that contravened the Constitution, but 
also to defeat measures that contravened his personal and 
party policy. If a measure appeared to him unwise and 
inexpedient he thought he should use the veto power to 
defeat it. The President was to share with Congress the 
responsibility for legislation ; the presumption in favor of 
a measure merely because Congress had passed it was 
not to weigh decisively with the President. This seemed 
to Clay and Webster and other opponents of Jackson a 



150 The American Republic 

dangerous assumption of executive power, in opposition 
to the spirit of the Constitution. Since Jackson's time, 
however, the veto has been used upon the theory which 
he exemplified, — to defeat any measure which the Presi- 
dent may deem pernicious or impolitic. President Cleve- 
land vetoed over three hundred private pension bills, and 
President Johnson, during the struggles on Reconstruc- 
tion, used the veto constantly against important measures 
of Congress in their plan of Reconstruction. The two- 
thirds majority, however, against Johnson were able to 
pass all desired measures over his veto ; and the Presi- 
dency, raised to such heights of power under Jackson and 
Lincoln, sank under Johnson to the lowest degree of po- 
litical importance, — so much so that Johnson's period 
has been spoken of as marking the ''degradation of the 
Presidency." 

Thus the veto in America, against a mere majority in 
Congress, has come to be a real power, while in England 
The veto and '* ^ as come to De only a nominal one, illustrat- 
written ing, as Mr. Bryce expresses it, "the tendency 
lons 'of unwritten or flexible constitutions to depart 
from, and of written or rigid constitutions to cleave to the 
letter of the law." That is, while in both countries the 
theory of the veto is the same, — "whereas it is now 
the undoubted duty of an English king to assent to every 
bill passed by both Houses of Parliament, however strongly 
he may personally disapprove its provisions, it is no less 
the undoubted duty of an American President to exercise 
his independent judgment on every bill, not sheltering 
himself under the representatives of the people, or fore- 
going his own opinion at their bidding. 1 The decline of 
the veto power in England, is due, first, to the decline 
in the power of the sovereign, and, second, to the fact 
that, generally, since the Revolution of 1688, the Crown 
has acted only on the advice of responsible ministers. 

1 Bryce's American Commonwealth, vol. i., p. 60. 



The Presidency 151 

In America the people vest more power in one man 
than in England, where the government is more that of 
a representative body. Or, we may say, that Dec iineof 
in America the people appoint a popular repre- the veto in 
sentative, the President, to restrain their popu- 
lar representatives in Congress ; from which it appears that 
the people are not quite willing to trust themselves to 
the government of their own representatives in a single 
body. This leads to conflicts and deadlocks between the 
two branches of the Government and to consequent gov- 
ernmental inertia and inability to act, as the people have 
no immediate and direct means of deciding in a dispute 
between the two branches of their Government. 

It would seem that under representative government in 
such cases power should be lodged in the representative 
body. For this reason the question has been 

J * Popular 

repeatedly raised whether the veto power is opposition 
desirable; whether it can be reconciled with totheVeto - 
popular government ; whether it would not be well to 
limit, or abolish it. Jackson's unprecedented use of the 
veto, followed by its similar use by Tyler in the defeat 
of the bank charters and other Whig measures, gave rise 
to party, if not popular, opposition to the veto, and 
from 1832 to 1843 frequent propositions were The 

made to limit this power by allowing a majority whig 

of all the members of each House instead of °PP° slt,on - 
two thirds of a quorum, to repass a vetoed measure. 
One of the most notable propositions in this direction was 
that of Henry Clay, January 24, 1842, who pro- ciayon 

posed a constitutional amendment providing the veto, 
that the veto of the President might be overruled by a 
second majority vote of the two Houses. In behalf of 
such a proposition as Clay's, it may be noticed that to- 
day, with a Senate of ninety members, and a House of, ap- 
proximately, four hundred (386) members, it might require 
forty-six votes in the Senate and two hundred and one 



152 The American Republic 

in the House to pass a measure. If the President then 
vetoes it, it will require fourteen more Senators and 
sixty-five more Representatives to pass the measure 
against him. Thus the veto in the hands of the Presi- 
dent makes him equal, in his power over legislation, to 
sixty-five Representatives and fourteen Senators, or to 
seventy-nine representatives of the people and the States. 
This considers merely his numerical weight and disregards 
entirely his influence from appointments and from the 
prestige and eclat of his office. Mr. Clay saw that the 
veto, as Jackson and Tyler wielded it, had become a 
greater power than the framers of the Constitution had 
ever intended ; that, whereas it had been given to protect 
the Constitution and to defend the Executive from legis- 
lative encroachment, it was now being used to defeat 
party policies approved by the people ; and that, owing 
to the extreme difficulty of mustering two-thirds votes in 
both Houses against a President, the veto had practically 
become absolute. Clay warned the country that, if the 
veto power was not arrested, or limited, the time would 
come when the whole legislation of the country would 
be prepared at the White House and would come down 
to Congress in the shape of bills to be registered. Then 
"the question that Congress would have to decide would 
be, not what is the proper remedy for the existing griev- 
ances of the country, not what will restore the national 
prospects ; no, but what measures will be sanctioned by 
the chief magistrate. The question was the old one, 
whether we should have in this country a power tyranni- 
cal, despotic, absolute, the exercise of which must, sooner 
or later, produce an absolute despotism ; or a free repre- 
sentative government with powers clearly defined and 
carefully separated. ' ' * One of the duties which the Whig 

1 Cited in H. C. Lockwood's The Abolition of the Presidency, p. 90. In 
this volume Mr. Lockwood advocates the reduction of the presidential 
office to purely ministerial functions and the government of the country by 



The Presidency 153 

party felt itself called upon to perform, "conspicuously 
and prominently above all others," was "a reduction of 
the Executive power by a further limitation of the veto 
so as to secure obedience to the public will as expressed 
by the immediate representatives of the people and the 
States, with no other control than that which is indis- 
pensable to avert hasty or unconstitutional legislation." ' 
The Whigs proposed to place upon their party banner, 
"The will of the people uncontrolled by the will of one 
man." 

But these proposals to reduce the veto came to noth- 
ing. After the passing of the party issues of the time 
and after the control of the presidential office through 
popular party machinery, all agitation in this direction 
ceased. 

On the other hand, proposals have been made for the 
extension of the Executive veto and for more frequent 
application of its use. It has been proposed to Pro osals 
require two thirds of all the members elect to to Limit 
each House instead of two thirds of a quorum, 
to avail against the President ; also, to allow the Presi- 
dent to veto single items in an Appropriation Bill without 
having to defeat the whole bill containing appropriations 
necessary for carrying on the Government. 3 The latter 
demand has arisen from a desire to enable the President 
to defeat grants for purely local purposes inserted by Con- 
gressional jobbery and log-rolling. This would materially 
increase the power of the veto and "practically destroy 
the only power which Congress has over the President 
apart from impeachment. 3 But, as a remedy against 

a representative assembly of the two Houses of Congress. The abolition of 
the veto would be a necessary step to accomplish this. See also Clay's 
Works, edited by Colton, vol. vi., p. 318. 

1 Address to the People by Whig Members of Congress, Niles's Register, 
vol. lxi., p. 36, Sept. 3, 1841. See also Benton's Thirty Years' View, 
vol. ii. 

8 See the topic, " Riders." 3 Mason's Veto Power, p. 138. 



154 The American Republic 

log-rolling jobs, and raids on the treasury, it might prove 
effectual. 

The signature of the President is not essential to the 
passage of a constitutional amendment. In 1794, objec- 
tion was made that the Eleventh Amendment 
and a Con- na d not been constitutionally adopted, because 
stitutionai ft h ac i no t been presented to the President for 
approval. Neither had this been done in the 
case of the first ten amendments. It was argued, in de- 
fence of adding amendments without the assent of the 
President, that an amendment is a substantive act, an 
act in Constitution-making, and it does not come within 
the provisions of the Constitution investing the Presi- 
dent with a negative. The Supreme Court unanimously 
sustained this view and declared the amendment a part 
of the Constitution. 1 However, the proposed Douglas 
amendment guaranteeing slavery against congressional 
interference was sent to President Buchanan, who ap- 
proved it, March 2, 1861 ; and the Thirteenth Amend- 
ment was presented to President Lincoln, who signed it, 
and notified Congress to that effect, whereupon the Sen- 
ate immediately passed a resolution declaring that the 
President's signature was not necessary. 3 

While the President's signature is essential to make 
effectual a Joint Resolution it is not necessary to the 

• operation of a Concurrent Resolution. A Con- 

Concurrent current Resolution has not the effect of law, but 
Resolutions. j g mere iy an expression and an announcement 
to the country of the sense of Congress, a statement of 
the opinion of Congress upon a public question or of the 
policy that body would like to pursue. It is used instead 
of a Joint Resolution or a bill, because of the known 
hostility of the President ; or on matters on which Con- 

1 See Hollingsworth vs. Virginia ; Hinsdale's American Government, 
p. 192. 

2 Mason's Veto Pozver, pp. 117-118. 



The Presidency 155 

gress wishes to establish a precedent by the public record, 
or, in a measure, to pledge the public conduct. The 
famous Mathews Concurrent Resolution of 1878, by 
which Congress sought to put the country on record in 
favor of the restoration and continued use of the silver 
dollar, is a case in point. In February, 1865, Congress 
sent to President Lincoln a Joint Resolution declaring that 
certain States were not entitled to Presidential electors, 
because they were then in rebellion against the Govern- 
ment. President Lincoln signed the resolution, but sent 
a message to Congress declaring this unnecessary, as the 
two Houses had exclusive authority under the Constitu- 
tion to count the electoral votes. This was the business 
of Congress. In March, 1866, in general harmony with 
this view, the two Houses passed a Concurrent Resolution 
declaring that no Senator or Representative should be 
admitted into either branch of Congress from any of the 
eleven States then considered in rebellion until the con- 
sent of Congress was obtained. President Johnson was 
not asked to approve this resolution. 1 

The form of a Joint Resolution, adopted in Congress 
February 25, 1871, was instituted for the purpose of a 
temporary enactment as distinguished from a permanent 
statute. There is no difference between a bill and a joint 
resolution so far as the purpose is concerned. It differs 
in phraseology from the enacting clause of a bill and this 
is the only difference that can be noted. It has to go 
through all the processes and stages of legislation that a 
bill does and then has the same force of law. It must 
be read as many times and must have the signature of the 
President. There is no reason for its existence, as all 
bills and legislation should have the same enacting clause. 2 

1 Hinsdale's American Government, p. 192. 

2 See remarks of Senator Hamlin of Maine, and Senator Sumner of 
Massachusetts, in Senate, Jan. 27, 1871. See Blaine's Twenty Years of 
Congress ; McKee's Manual of Congressional Practice, pp. 124, 126. 



156 The American Republic 

President Grant on August 15, 1876, vetoed a bill for 
the sale of certain Indian lands. He sent his veto mes- 
Hasthe sa S e to tne Senate, but before that body had 
President a acted upon it a message was received from the 
RecaVa President, saying that his veto was premature, 
veto? an d he requested that the bill be returned to 

him that he might sign it. A discussion arose as to 
whether the President could recall a veto message. It 
was generally held that the President had no such power, 
and the only effect of the second message was to induce the 
passage of the bill over the veto. 1 

Though the Senate is co-ordinate in power with the 
President in treaty-making, and though certain topics re- 
• „, lating to this theme pertain to the Senate and 

The Treaty- & r 

Making House, it seems best to explain here the vari- 
Power. ous f actors anc j f unc tions of the treaty-making 

power of our Government. 

The Constitution says: The President "shall have 
power, by and with the advice and consent of the Senate, 
to make treaties, provided two-thirds of the Senators 
present concur. ' ' 2 ' ' Two-thirds of the Senators present' ' 
may be a minority of the whole Senate. This provision 
does not mean, as practice has interpreted it in the case 
of appointments, that the Senate can advise only by say- 
ing Yes or No to a treaty. While the practice has usually 
been for the Presidents to ask for the "advice " of the 
Senate only when they ask its ' ' consent " to a completed 
treaty, yet it is perfectly proper and constitutional for a 
sco e of President to ask the advice of the Senate before 
the senate's opening or completing negotiations, as Wash- 
ington frequently did, and as Polk did in the 
Oregon Treaty of 1846. The Senate may advise by 
proposing amendments, or it may request the President 
to open negotiations for certain treaty purposes, or ad- 
vise him not to begin negotiations of a certain kind, 

1 Mason, p. 118. 3 Art. II., Sec. 2, CI. 2. 



The Presidency 157 

though the President would not be under obligations to 
act on such requests. The initiative in making a treaty- 
is with the President, because he has power to appoint 
and receive ambassadors, and he may complete negotia- 
tions with a foreign power — always through his Secretary 
of State — before communicating any of the proceedings 
to the Senate. He is not bound to take the Senate into 
his confidence in the process of his negotiations. But 
since the Senate can block his negotiations after they are 
communicated, or defeat his treaty after it is made, the 
President will naturally desire the favor and co- 
operation of the senatorial majority, and espe- tive Seeks " 
cially of the Committee on Foreign Relations. senatorial 

t <-» <-> <-*» s-*i r 1 Co-operation. 

In 1870, Senator Sumner, Chairman of the 
Committee on Foreign Affairs in the Senate, opposed and 
succeeded in defeating President Grant's treaty for the 
annexation of San Domingo. In 1898, President McKin- 
ley sent Senator Davis of Minnesota, Chairman of the 
Senate Committee on Foreign Affairs, as one of our 
Commissioners to Paris to negotiate the Peace Treaty 
with Spain. Naturally, Senator Davis would defend the 
completed treaty on the floor of the Senate, and his Re- 
publican colleagues, who placed him in his responsible 
position, would be inclined to sustain him. In 1890, 
President Harrison did not take decisive steps during our 
strained relations with Chile until he had sought the judg- 
ment and co-operation of the Chairmen of the Foreign 
Affairs Committees in both Senate and House. Mr. 
Blount of Georgia, a Democrat, was Chairman of the 
House Committee on Foreign Affairs, but he and Presi- 
dent Harrison, a Republican, were acting in complete 
harmony and with a mutual understanding. 

The treaty-making power thus conferred upon the 
President makes him a diplomatic officer. He directs 
our diplomacy. Through his Secretary of State he rep- 
resents the nation in its relations with foreign powers 



158 The American Republic 

and controls our foreign policy. But, as we have indi- 
cated, the President has not a "free hand" to do as he 
will in our foreign relations. He cannot declare war, of 
course, for that power belongs to Congress, but he may 
by his negotiations or by his executive orders so entangle 
us in a foreign complication that it may be very difficult 
if not impossible for Congress to refuse adeclaration of war. 
In 1846, preceding the Mexican War, President Polk 
ordered our troops into disputed territory, where they 
were attacked by the Mexicans ; Congress then 
President merely declared that "war existed by the act 
may Bring f t h e Republic of Mexico. ' ' A President also 

on a War. 

may prolong a war by refusing to negotiate, or 
he may speedily end one by protocol if he be so inclined. 
But in either policy the President finds a check against 
him in Congress. If he negotiates too soon or adversely 
to the national interest the Senate may refuse to confirm 
the treaty ; and if he be disposed to prolong the war un- 
necessarily and against the national desire, Congress may 
refuse money for the conduct of the war. The President, 
therefore, in any international struggle or negotiation 
of moment will always seek the co-operation of the con- 
gressional branch of the Government. 

Although the House may not participate in the con- 
duct of foreign affairs, its power of withholding appro- 
The Need of priations would be effective in embarrassing, or 
Unity and even in defeating, the Administration, if the 
Fore?gr? ym party majority there chose to antagonize the 
Relations. President. It is by all means desirable that 
our Government in a controversy with a foreign power 
should act unitedly. If the different departments of the 
Government pull apart and come to loggerheads in a 
foreign contention, it is not probable the Government 
will be able to carry its point. It is for this reason that, 
in any grave crisis, the President will not be apt to take 
any decisive step until he knows that he will be sustained 



The Presidency 159 

by the agreement and concurrence of those who are au- 
thorized to speak for the two Houses. 

It has been said that the House cannot participate in 
the conduct of foreign affairs. That the House is not to 
be considered as a part of the treaty-making ToWhat 
organ of the Government was settled by the Extent may 
precedent established in the discussions over R ep resenta- 
Jay's Treaty, — one of the most famous treaties tives Par - 

1 . rr^i . 1 , ■• ticipate in 

in our history. The points then brought into the Treaty 
discussion are of great importance in the con- Power? 
sideration of this subject. Jay's Treaty was negotiated in 
November, 1794, but it was not received at Washington 
until after the adjournment of Congress in March, 1795. 
Washington submitted the treaty to the Senate in a 
special session of that body summoned for that purpose, 
and the treaty was ratified, after a two-weeks secret de- 
bate, on June 24, 1795. The vote stood twenty to ten, 
exactly the two thirds necessary for ratification. When 
the treaty became public it excited the fiercest popular 
opposition. This opposition was represented in the lower 
House of Congress, where the Jeffersonian Republicans, 
who were hostile to the treaty, had a majority, and a 
struggle there over the treaty was inevitable. Discussion on 
On March 2, 1796, President Washington pro- Jay's Treaty, 
claimed the treaty the law of the land and communicated 
it to the House in order that the necessary appropriation 
might be made to carry it into effect. On the day of 
this communication from the President, Edward Living- 
ston, of New York, a Republican leader, offered a reso- 
lution in the House calling on the President for Jay's 
instructions and other papers relating to the treaty. A 
notable debate occurred on this resolution, and Albert 
Gallatin, the ablest Republican leader of the Gallatinon 
House, made one of his two great speeches the Treaty 
which Jefferson pronounced the best commen- 
tary ever published on the treaty-making clauses of the 



160 The American Republic 

Constitution. Gallatin defended the right of the House 
to use its discretion in providing for the carrying out of 
this treaty, — that the House could review the merits and 
desirability of the treaty, and was not bound to carry it 
out merely because it had been agreed to by the Presi- 
dent and the Senate. The House was competent to look 
into the papers, as it had a right to do, and see the public 
reasons for the treaty and the methods of its negotiation. 

" Gallatin did not claim on the part of the House an abso- 
lute right of review in every instance of negotiation, but that 
whenever the President and Senate include in a treaty matters 
confided by the Constitution to the whole Congress of the 
United States, an act of legislation will be necessary to con- 
firm these articles; this act the House, as a co-ordinate branch 
of Congress, is perfectly competent to pass or reject at discre- 
tion, and that thus the absorption of legislative powers by the 
treaty-making organ will be obviated." 1 

The Constitution, and treaties made in accordance with 
it, are the supreme law of the land. In saying this, the 
Constitution did not intend to place treaty law above 
congressional law, or to compare these different kinds of 
national law with one another ; but the intention was to 
declare whether "the constitutional laws and treaties of 
the General Government, or the laws and constitutions 
of the States are supreme, in case of clashing powers." a 

It was understood that the Jay Treaty contained pro- 
visions touching the regulation of commerce known to be 
in opposition to the will of the House. These provisions 
were inserted in the treaty on the recommendation of 
Hamilton with the express design of making laws by the 
more convenient combination of President and Senate 
instead of President and the whole Congress. Gallatin 
and the Republicans held that they had a right to pre- 

1 Schouler, History of the United States , vol. i., p. 309. 

2 Gallatin. 



The Presidency 161 

vent this, and their position, especially since there was 
no precedent in such a case, cannot be said to have been 
unreasonable. The House passed the Livingston resolu- 
tion by a large majority, calling upon the President for 
the papers. But Washington refused to submit the 
papers to the House because, as a matter of precedent, 
he did not wish to acknowledge that the assent of the 
House was necessary to the validity and execution of a 
treaty. The House, after discussing the President's 
reply, receded from its position in this particular case 
and passed the laws and appropriation necessary for 
carrying the treaty into effect. It, however, resolved 
that while it claimed no agency in the making of treaties, 
that power being exclusively with the President and 
Senate, yet, as a part of Congress, it claimed the right 
of deliberating upon the expediency or inexpediency of 
carrying into effect a treaty which must depend for its 
execution on laws to be passed by Congress, or 
that deals with subjects, like the regulation of the House 
commerce, which had been given by the Con- in Treat y- 

i , r ~ ,1 Making. 

stitution to the control of Congress ; and that 
the House might act in such cases as, in its judgment, 
might seem most conducive to the public good. Jefferson 
briefly summarized the Republican doctrine on this sub- 
ject in a letter to Monroe : 



"We conceive the Constitutional doctrine to be that the 
President and Senate have the general power of making 
treaties, yet when they include in a treaty matter confided by 
the Constitution to the three branches of the Legislature, an 
act of legislation will be necessary to confirm these articles, and 
that the House as one branch are perfectly free to pass the act 
or refuse it, governing themselves by their own judgment 
whether it is for the good of their constituents to let the treaty 
go into effect or not. On this depends whether the powers of 
legislation shall be transferred from the President, Senate, and 



1 62 The American Republic 

House of Representatives to the President, Senate, and Pia- 
mingo, or any other Indian, Algerine, or other chief. ' ' 

Jefferson acted on this principle in the Louisiana Treaty 
of 1803. He sought the judgment of the House before 
Jefferson on the treaty was made, and he approved the 
the powers statement of Randolph that, in such a treaty, 

of the House *, . . 

in Treaty- the Representatives are as free as the rresi- 
Making. dent and Senate were to consider whether the 
national interest requires or forbids their giving the forms 
and force of law to the articles over which they have a 
power"; and there was, of course, no trouble about the 
law necessary to carry the Louisiana Treaty into effect. 
In 1868, in the contest between the two Houses over the 
Alaskan Treaty, while the House receded from the larger 
claim which it first put forth it still succeeded in securing 
the assent of the Senate, substantially, to the treaty- 
doctrine as announced by Jefferson. After the treaty 
The Alaskan with Russia by which we purchased Alaska, in 
Treaty, 1867. 1867, the House hesitated to make the appro- 
priation necessary to fulfil the obligation. General Banks, 
Chairman of the House Committee on Foreign Affairs, 
urged the appropriation on the ground, inter alia, of the 
obligation imposed by the treaty. Mr. C. C. Washburn, 
in a speech answering Banks, July i, 1868, held that it 
was the "right and duty of the House to inquire into the 
treaty, and to vote or not vote the money, according to 
its best judgment." The House appropriated the money, 
but it prefaced its Appropriation Bill with the declaration 
that "the subjects embraced in the treaty are among 
those which by the Constitution are submitted to the 
power of Congress and over which Congress has juris- 
diction; and for these reasons it is necessary that the 
consent of Congress should be given to the said stipula- 
tions, before the same can have full force and effect/ ' 
The House made no mention of the Senate's ratifica- 



The Presidency 163 

tion, but merely referred to the fact that the President 
had entered into a treaty with the Emperor of Russia, 
agreeing to certain terms. This was equivalent to claim- 
ing that the consent of the House was as essential to a 
treaty as that of the Senate; and that a treaty was a 
subject for the consideration of Congress. The Senate 
denied this pretension and rejected this declaration unani- 
mously. A conference committee evolved a compromise 
declaration that 

' ■ Whereas, the President has entered into a treaty with the 
Emperor of Russia, and the Senate thereafter gave its advice 
and consent to said treaty . . . and whereas said stipu- 
lations cannot be carried into full force and effect, except by 
legislation to which the consent of both Houses of Congress is 
necessary; therefore, be it enacted that there be appropriated 
the sum of $7,200,000" 

for the purchase of Alaska. This does not state that the 
House is free to refuse an appropriation, or to withhold 
legislation, necessary to carry out a treaty, but it must 
be assumed that the " consent of both Houses" means 
the free, not the forced, consent of those bodies. 

It cannot be said that the law of the unwritten consti- 
tution of precedent and custom is fully established upon 
this point. The subject is still open to discussion and 
to differences of opinion. It is still held by high authority 
that while the House cannot be coerced to provide for 
the execution of a treaty, it is clearly the duty of the 
House so to do, and the necessary appropriation is dis- 
cretionary with Congress only in the sense that the pay- 
ment of public debts or the fulfilment of public obligations 
is discretionary, — that is, it cannot be compelled by any 
process of execution. 1 Yet what the House should do in 
such cases is a political rather than a judicial question; 

1 Cooley, Constitutional Law, p. 103. 



1 64 The American Republic 

and it is safe to say that political rather than judicial 
opinions and motives will govern. 1 

The tendency is clearly in favor of the doctrine an- 
nounced by Jefferson, that while there is a strong pre- 
Powerofthe sum ption in favor of a treaty already made, yet 
House to the House has a right to defeat a treaty, by 
op^ationof withholding necessary appropriations, if the 
a Treaty stm proposed treaty is too objectionable or vio- 
lates too much the House's appreciation of the 
public welfare. 3 "The House would not now in any case 
consider itself under a constitutional obligation to appro- 
priate money in support of a treaty the provisions of 
which it did not approve. It is therefore practically true 
that all such treaties must pass under the judgment of the 
House as well as under that of the Senate and the Presi- 
dent. 3 Judge Cooley admits that, while the refusal of 
the House to carry out a treaty would be an extreme 
measure, yet "it is conceivable that a case might arise in 
which a resort to it might be justified." 4 

This view is further supported by the opinion delivered 
by Justice McLean of the Supreme Court : 

' ' A treaty is the supreme law of the land only when the 
treaty-making power can carry it into effect. A treaty which 

1 The Supreme Court has recognized that legislation may be necessary 
before a treaty can become law, and that the House as a political branch 
of the Government may decide at its discretion whether it will complete a 
treaty. "When the terms of the stipulations import a contract, when 
either of the parties engage to perform a particular act, the treaty addresses 
itself to the political, not to the judicial department, and the Legislature 
must execute the contract before it can become the rule of the court." — See 
Chief Justice Marshall in Foster vs. Neilson, 2 Peters, 253. The Court in 
this case recognized a distinction between the provision of a treaty which 
is so framed as to operate directly upon the citizens of a country and a pro- 
vision which merely stipulates that certain things shall be done. It is in 
the latter case only that legislation by Congress is necessary. — Boutwell, 
The Constitution at the End of the First Century, p. 291. 

2 See Blaine, Twenty Years, vol. ii., pp. 333-339. 

9 Ibid., p. 338. 4 Constitutional Law, p. 167. 



The Presidency 165 

stipulates for the payment of money undertakes to do that 
which the treaty-making power cannot do ; therefore the treaty 
is not the supreme law of the land. To give it effect the action 
of Congress is necessary, and in this action the Representatives 
and Senators act on their own responsibility and judgment, 
not on the judgment and responsibility of the treaty-making 
power. No act of any part of the government can be held to 
be a law which has not all the sanction to make it law." * 

However much the President may cultivate the Senate 
or individual Senators in seeking to provide smooth sail- 
ing for his treaties, he cannot always avoid opposition 
and antagonism in the open Senate. Misunderstandings 
arise, and Senators who have been supposed to give 
private assurances of support are afterwards found in 
open opposition. Grant accused Sumner of giving a 
private promise of support in the San Domingo Treaty, 
an accusation which arose, no doubt, from a misunder- 
standing. Occasionally Senators of the opposing party 
will seek to defeat a President's treaty in order to dis- 
parage or humiliate his administration ; the desire to win 
a fraction of the foreign vote, the personal ambition of 
Senators to win prominence by an amendment, the sup- 
posed sectional interest of a group of States, all may con- 
spire to carry Senators into opposition. Altogether the 
President's treaty has a hard gauntlet to run. 

It is claimed by some that within the last generation 
the Executive initiative and independence in treaty- 
making has been seriously impaired, — much to i mpa i r ment 
the detriment of our national diplomacy. A of Executive 

t. • 1 1 • - #• 1 <- Independence 

President, the critics of the Senate assert, inTreaty- 
hardly ventures now upon a treaty of any im- Making, 
portance unless he first obtains the assent of the Foreign 
Affairs Committee of the Senate, or of its Chairman ; that 
foreigners look upon this chairman as a sort of second 
foreign secretary ; having negotiated with one Secretary 

1 Turner vs. The American Baptist Missionary Union. 



1 66 The American Republic 

of State they are not sure the treaty is made till our 
Senate Chairman has assented to it, and not then unless 
it is known that he speaks for the Senate ; that the Secre- 
tary of State must now have the advice and consent of 
the Senate in his pocket before he starts in on a negotia- 
tion ; that treaties habitually fall through in the Senate, 
or that body so amends them that the other party to the 
agreement withdraws from the negotiation. The Bayard- 
Chamberlain Treaty of 1888 on the Fisheries question, 
the Olney-Pauncefote General Arbitration Treaty of 
1897, and the Hay-Pauncefote Treaty of 1901, were all 
defeated by senatorial amendment. The Senate insists 
on playing a part of the diplomatic game "from the 
shuffling of the cards to the taking of the last trick." It 
treats a document sent to it by the President as a treaty 
inchoate, as a rough draft, and then goes to work upon 
it, on the theory that its task is not one of mere approval 
or disapproval, but as if it were a part of the negotiating 
power. As a negotiator the Senate is inherently weak. 
It is not in a position to ask for information, or to sug- 
gest its proposals to the other party and, therefore, it 
cannot come to terms with him either by surrendering its 
point or by persuading him to yield, or by way of a compro- 
mise. Having refused to be content to be an advisory 
body, the Senate, through influential Senators, now insists 
that it should be consulted in advance, or during the pro- 
gress of the negotiations. "This assertion of joint power 
with the Executive in negotiation is part and parcel of the 
general assumption of power by the Senate. It dictates 
appointments because it possesses the power of confirma- 
tion ; why should it not dictate treaties, possessing also 
the power of ratification? " Must the Secretary of State 
now previously canvass the Senate to ascertain if a pro- 
posed treaty will receive the requisite number of votes? l 

1 1 have attempted here to summarize a recent criticism by Mr. Henry 
Loomis Nelson under the caption, " A Mistake of the Fathers," Harper's 



The Presidency 167 

To this criticism it is replied on behalf of the Senate 
that no foreign power has a right to take umbrage be- 
cause the Senate offers an amendment to a pro- 

, 1 • • 1 1 r The Senate 

posed treaty; that it is altogether proper for Asserts 
the Senate to look upon itself as one of the co-ordinate 

1 1 1 • 1 Powers 

negotiators and to regard a treaty submitted to with the 
it, not as completed, but as only begun, as a Pr «-sident 
mere project for a treaty. As either negotiator Making, 
while a treaty is in the making may propose a ^"d*" 
new provision, which may be either accepted or 
rejected by the other negotiator, so the Senate may pro- 
pose new provisions which the President will be expected 
to submit to the other party to the treaty. The Senate is 
co-ordinate with the President in treaty-making. The 
President begins a negotiation and continues it as far as 
he cares to before submitting it to the Senate. The Senate 
may then ask him to continue it farther by certain pro- 
posals. Precedents of a century, too numerous to cite, 
support this contention, and foreign powers should under- 
stand it. Before the adoption of the Constitution, the 
treaty-making was with the States. Under the old Con- 
federation the assent of nine States was required to every 
treaty ; a minority of the States could thus control the 
foreign relations of the country. The States did not en- 
tirely surrender the treaty-making power, but in confer- 
ring on the President an equal share in this sovereign 
power the States retained to themselves an equal share. 
In 1795, the Senate amended the Jay Treaty, ratifying 
on condition that a certain article be suspended. Since 
then no President has ever questioned the right of the 
Senate to amend. 1 Such is a summary defence of the 
Senate's prerogative in treaty-making. 

Weekly, June 22, 1901. See also " The Paralysis of the Treaty-Making 
Power," The Nation, lxxi, 481. 

1 See " The Treaty-Making Power of the Senate," by Senator Henry 
Cabot Lodge, Scrifozer's Magazine, January, 1902. 



1 68 The American Republic 

While Senators may constitutionally and conscien- 
tiously oppose a President's foreign policy, it is clear 
that they ought not to do so from personal and party 
electioneering purposes, as they have been charged with 
doing. The President is much more disappointed in the 
failure of negotiations than the Senators, because from 
the functions of his office he is led to see the need of such 
negotiations, and, besides, individual Senators can evade 
responsibility and be personally indifferent to the result. 
It is difficult for public opinion to punish individual 
Senators for the defeat of a good treaty. 1 But whether 
the control of our foreign policy should be so divided is, 
nevertheless, a mooted question. Those who object to 
the co-ordinate participation of the Senate in treaty- 
making have frequently criticised the Senate, not because 
of its possession of this power, but because its use in par- 
ticular cases has not been to their liking. They would 
give the Executive full power in negotiations, leaving to 
is Di lomac t ^ le Senate only the right and duty of assent 
Essentially (and of dissent only in extraordinary cases), be- 
cause it is supposed that secrecy and despatch 
are essentials to successful diplomacy ; and if the nation 
is bound to show its whole hand in a game with a foreign 
opponent (as a discussion in an executive session of the 
Senate may do), " precious opportunities of winning an 
ally or striking a bargain may be lost." This may be 
because diplomacy is looked upon as an international 
game of wits and expedients, where secrecy, indirection, 
and finesse are deemed essential to success and where 
open candor, fair dealing, and straightforward honesty 
can only lead to impotency and defeat. But this is not 
the American view of diplomacy, while in America gov- 

*Mr. Kasson, on behalf of President McKinley's administration, devoted 
much labor and expert ability to the negotiation of important reciprocity 
treaties. The completed treaties were disregarded by the Senate, hardly re- 
ceiving from the Senate the courtesy of respectful attention. 



The Presidency 169 

ernment by secretism is regarded as a very dangerous 
thing; and it is a very healthful restraint upon the Presi- 
dent that he has to seek the pulse of the nation and to 
take into his counsels men who are in a sense the repre- 
sentatives of the people. It gives the nation a chance to 
"retire from a doubtful bargain." If a successful stroke 
in foreign policy require unity, quickness, and vigor, these 
may be found in the President's initiative. If his policy 
be manifestly for the national interest without room for 
dispute or cavil, the action of the President will not fail 
from lack of confirmation. If there be room for dispute, 
the Senate may be right and the President wrong; while 
in any case the division of final responsibility puts us on 
the safe side, and it does not prevent prompt action in 
the face of an unusual emergency. 1 

A treaty is the supreme law of the land, but it must be 
in harmony with the Constitution, otherwise, like any 
other so-called law, it is null and void. Treaties The Law of 
differ from laws only in form and in the organs Treaties, 
by which they are made. It would seem to follow that 
a law may be repealed by a treaty as well as a treaty by 
a law. "If a treaty and a law are in opposition, their re- 
spective dates must decide whether the one or the other 
is to be regarded as repealed. ' ' 

Jay argued in the Federalist that it was necessary to 
have the consent of both parties to a treaty 
before it could be annulled or cancelled ; that congress may 
while laws can be repealed by those who make * Treat** 
them, a treaty is made by both of the con- 
tracting parties ' ; so the consent of both must be given 

1 In England the Cabinet has an almost unlimited discretion in foreign 
affairs, through the Foreign Secretary. Parliament has power to interfere, 
but it almost never does, because the governmental majority will not press 
the Foreign Office for information and force the exposure of the govern- 
mental policy when the Ministry declares it is undesirable that the infor- 
mation be furnished. 2 Von Hoist, Constitutional Law, p. 202. 

3 No. 64, Federalist, p. 405, Lodge ed. 



170 The American Republic 

before it can be cancelled. Gallatin said the same sub- 
stantially when he asserted that it requires the same 
power to repeal a law that enacted it. But in experi- 
ence it is found that Congress can nullify the action 
of the treaty-making power by the passage of laws that 
operate to defeat the provisions of treaties. Congress, 
in the Chinese Immigration Law, intentionally legislated 
in direct contravention of an existing treaty, and the 
Supreme Court sustained the act as binding (municipally), 
on the principle that the last Act of Congress repeals all 
previous laws in conflict with it, even though they may 
be treaties. 

The last expression of the sovereign will must control. 
It was an Act of Congress of July 7, 1798, by which 
the stipulations of the famous French Alliance 
cong«s°s °f l 77% were abrogated. 1 The courts of the 
supersedes United States cannot declare a law unconstitu- 
tional upon the ground that it violates treaty 
obligations. Such a question is an international one to 
be settled by the foreign nations interested and by the 
political departments of the Government. 

The method by which a treaty is abrogated is properly 
a subject for international law. Though it may be set 
Abrogation aside by a mere act of legislation, yet for such 
ofTreaties. an aC £ the nation may be morally condemned 
and such disregard of our treaty obligations may involve 
us in foreign complications. But if a treaty be violated 
by the other party, or if its execution be impossible, or 
if it require the violation of recognized moral law, or if 
its fulfilment become destructive to the state, the nation 
may be held justifiable in abrogating it without the con- 
sent of the other party. 2 This question first came up in 
American history in 1793, when Washington's adminis- 

1 See opinion of Justice Field in The Chinese Exclusion Case 130 U. S., 
581 ; Baldwin vs. Franks, 120 U.S., 678. 

2 See Jefferson's opinion to Washington, 1793. 



The Presidency 171 

tration had to decide whether it would hold the French 
treaties of 1778 to be binding upon us. The obligations 
of these treaties seemed inconsistent with the policy of 
neutrality which it was desired to pursue in the war then 
going on between France and England. Ham- „ ., 

00 fc> Hamilton 

ilton held that the Administration could re- and Jefferson 
nounce the treaties with France because the AU onthe 

Abrogation 

conditions had so changed since they were of Treaties, 
made as to render them disadvantageous and I793 * 

dangerous to us. 

1 ' A treaty pernicious to the State is of itself void, where no 
change in the situation of either of the parties takes place. By 
a much stronger reason it must become voidable at the option 
of the other when the voluntary act of one of the allies has 
made so material a change in the condition of things as is 
always implied in a radical revolution of government." * 

This is a dangerous doctrine. A nation, in the exercise 
of an easy virtue, need not be without the excuse of 
changed conditions if it desired to escape the obligation 
of a treaty that had become inconvenient. "Compacts 
between nation and nation are obligatory on them by the 
same moral law which obliges individuals to observe their 
compacts" 2 ; and a nation, like an individual, though it 
has sworn to its loss, should not break its plighted word. 
A righteous nation will not do so. A treaty should pro- 
vide a method of renunciation. If this method be pur- 
sued, or, none being provided, if a mutual agreement to 
abrogate the treaty be honorably sought by one party 
and selfishly refused by the other ; if the treaty have be- 
come seriously injurious to the national interest, and if the 
conditions under which it was made have become obso- 
lete by the lapse of a generation or more of time, then 
the nation may be justified in declaring it abrogated. 3 

1 Hamilton to Washington, 1793. 2 Jefferson to Washington, 1793. 

3 See Bouvier's Law Dictionary. 



17 2 The American Republic 

' ' In the observance of treaties during the last one hundred 
and twenty-five years, there is not a nation in Europe which 
has been so exact as the United States, nor one which has a 
record so free from examples of the abrogation of treaties at 
the pleasure of one of the signers alone." 1 

"The United States shall guarantee to every State in 
this Union a republican form of government, and shall 
The protect each of them against invasion ; and on 

President the application of the legislature, or of the Ex- 

and the • , i i i • f i 

Guarantee ecutive (when the legislature cannot be con- 
ciause. vened), against domestic violence.' ' 

This is called the "guarantee clause " of the Constitu- 
tion. It guarantees to each State (a) a republican form of 
government,^) freedom from domestic violence, (^)a settle- 
ment between rival State governments. For these three 
purposes the United States may interfere within a State. 

(a) Considerable discussion has arisen as to which 
branch of the Government should carry out the guarantee 
of a republican form of government. The Supreme Court 
has held that 

1 ' under this article of the Constitution it rests with Congress 
to decide what government is the established one in a State. 
For as the United States guarantee to each State a republican 
government, Congress must necessarily decide what govern- 
ment is established in the State before it can determine 
whether it is republican or not. And when the Senators and 
Representatives of a State are admitted into the Councils of the 
Union, the authority of the Government under which they are 
appointed, as well as its republican character, is recognized by 
the proper constitutional authority. This decision is binding 
on every other department of the Government, and could not 
be questioned in a judicial tribunal." 8 

1 Senator H. C. Lodge, Scribner's Magazine, January, 1902, on "The 
Treaty-Making Power of the Senate." 

2 Luther vs. Borden, 7 Howard, 1, decided in 1848. This case grew out 
of the Dorr Rebellion in Rhode Island in 1842. The people of Rhode 



The Presidency 173 

(b) Applications for protection against domestic vio- 
lence and rival State governments are made to the Presi- 
dent, though it rested with Congress under Application 
the Constitution to determine the means of forProtec- 

,,-,,. ,. ,-, .-, tion Against 

fulfilling this guarantee. Congress might have Domestic 

placed it in the power of the Court to decide violence is 

* 1 • 1 t 1 11*1 Made to the 

when the contingency had happened which re- president. 

quired Federal interference; but Congress de- Act of 1795. 
cided otherwise and imposed upon the President, by the 
Act of February 28, 1795, the lawful duty of fulfilling 
this guarantee, upon the call of the legislature of the 

Island continued to live under the charter of 1663 until 1842, with only a 
few changes touching the right of suffrage. This charter limited the right 
of suffrage unjustly, and provided for unfair and unequal representation, 
and it did not provide for its own amendment. Many citizens became dis- 
satisfied because the legislature would not afford relief. A proclamation 
was issued by petitioners, calling for a vote of the freeholders on a new 
constitution. A vote was held, and it was claimed that a majority had voted 
for a new government. The new government, through Dorr, its governor- 
elect, proceeded under its new constitution to assert its au- 
thority by force of arms. The old government resisted this, The Dorr Re- 
called out the State militia to subdue the rebellion, and r * lon * 

Luther vs. 
passed an act declaring martial law. Dorr, the newly elected Borden. 

governor, marched upon the State arsenal with an armed 
force ; but he failed to capture the arsenal and a few days later disbanded 
his forces and left the State. He was subsequently arrested, convicted of 
treason, and sentenced to life imprisonment, but was subsequently par- 
doned. Luther was a follower of Dorr. Borden, acting under the orders of 
the old government, broke into Luther's premises for the purpose of ar- 
resting him. Luther sued for trespass, claiming that such an act was 
wrongful and illegal. The question at issue then was, which government 
was the legal and the constitutional one. The verdict was given for Bor- 
den, both in the State courts and also in the Federal courts on appeal ; 
this recognized the old charter government as legal. This was done be- 
cause it was held Congress had recognized the old government in admitting 
its Senators and Representatives, and because the President had officially 
recognized the old governor. During the period of Reconstruction, 
Congress claimed to act with the President in guaranteeing a republican 
form of government to the Southern States. Thaddeus Stevens and other 
leaders of the congressional party held that the " United States" in this 
clause meant the Congress and the President as the entire lawmaking 
body, — the President to carry out the decision of the combined legislature. 



i74 The American Republic 

State, or of the Executive if the legislature cannot be 
convened. In the Rhode Island case of 1842, upon the 
application of the governor under the charter govern- 
ment, the President recognized him as the Executive 
power of the State, and took measures to call out the 
militia to support his authority, if it should be found 
necessary for the General Government to interfere ; and 
it is admitted that it was the knowledge of this decision 
that put an end to the armed opposition to the charter 
government, and prevented any further efforts to estab- 
lish by force the proposed (Dorr) constitution. The 
interference of the President, therefore, by announcing 
his determination, was as effectual as if the militia had 
been assembled under his orders. And it should be 
equally authoritative. No court of the United States 
would have been justified in recognizing the opposing 
party as the lawful government, or in treating as wrong- 
doers, or insurgents, the officers of the government which 
the President had recognized. 1 

The court, therefore, considers Federal interference as 
a political subject and holds that the Constitution and 
Federal ^ e * aws (^ ct °^ February 28, 1795) give to the 
interference President the power to determine whether or 
fo^PoHticai not a State is in a condition of insurrection, and 
Determin- it is his duty to recognize which is the true 
government. He should not be hampered or 
delayed in cases of this kind, and if, in his opinion, the 
guarantee clause (either of republican government or 
freedom from domestic violence) is violated, it is for him 
to declare martial law and order out Federal troops, if 
necessary. The Federal courts cannot review his action, 
nor interfere with his political conduct. 

It is said that this power is dangerous to liberty and 
may be abused. All power may be abused if placed in 
unworthy hands. But where would this power be safer? 
1 Luther vs. Borden, 7 Howard, 1 ; Boyd's Cases, pp. 649-650. 



The Presidency 175 

The power, to be effectual, must be prompt. At all 
events, this power is conferred by the Constitution on the 
President, and it is for him and no other to determine as 
to the conditions in a State, and what is the true character 
of the government therein. If the President should fall 
into error and invade the rights of the people of the State, 
it would be in the power of Congress to apply the proper 
remedy. The courts must apply the law as they find it. 1 
The President may not interfere against domestic vio- 
lence except on the application of the legislature of the 
State or of the Executive of the State if the 

Must the 

legislature cannot be convened. 2 But in case president 
a domestic insurrection within a State violates A Aw , ait * he 

Application 

United States law and obstructs the instru- of the state 
ments or interrupts the operations of the func- Authonties? 
tions of the United States Government, the President 
may intervene without awaiting the application of the 
State government or legislature. A notable instance of 
this is seen in President Cleveland's action in the great 
strikes in Chicago in 1894, in which he interfered to en- 
force the United States postal laws and the Interstate 
Commerce Act. This is the President's duty under an- 
other clause of the Constitution, — that which requires 
him to "take care that the laws be faithfully executed." 
But it is clearly the intention of the Constitution, and in 
accordance with the early precedents of the Government, 
that it is the function of the States to preserve domestic 
order, and that the United States Government is not to 
interfere (for other purposes than to protect its own rights 
and interests) except on the application of the State au- 
thorities. Of the necessity for aid the State authorities 
are to be the judge. 3 

1 Luther vs. Borden. 

2 Constitution and Act of February 28, 1795. 

3 See Luther vs. Borden, 7 Howard, 42 ; Bryce, vol. i., p. 55 ; Inter, 
national Review for January, 1875. 



176 The American Republic 

During the late civil strife in Kentucky between two 
rival governments, Mr. Taylor, the Republican governor, 
appealed for Federal aid against an opposing Democratic 
legislature. The aid was refused by President McKin- 
ley's administration. It was explained that the exact 
functions of the United States Army, when acting within 
a State, have been most carefully defined and set out in 
General Order 26, promulgated July 24, 1894. Under 
the terms of this order, the Government of the United 
States can, of its own volition, use the Federal troops 
within a State only when insurrection, violence, unlaw- 
ful combinations, or conspiracies in any State so obstruct 
or hinder the execution of the laws thereof and of the 
United States as to deprive any person or class of people 
of such State of any of the rights, privileges, or immuni- 
ties or protection named in the Constitution and secured 
by the laws for the protection of such rights, privileges, 
or immunities, and the constituted authorities of such 
State are unable to protect, or from any cause fail in or 
refuse protection of the people in such rights. 1 

The war power of the President comes to him by virtue 

of the fact that he is made the Commander-in-Chief of 

the Army and Navy of the United States and 

Power of the is charged with "the faithful execution of the 

President. i aws /' j n a c i v ii or foreign war, or in the 

midst of great civil commotion, this may lead to a vast 
and dangerous exercise of power. During our Civil War, 
President Lincoln in his military power was almost a dic- 
tator, exercising more personal power than any English- 
speaking ruler since Oliver Cromwell. Congress consented 
to what he did, and it was not made clear to what extent 

1 Another case in which the United States troops might be employed is 
set out in Sec. 5297, Revised Statutes, authorizing the President to em- 
ploy troops in case of an insurrection in any State against the government 
thereof " on application of the legislature of said State or of the Executive 
thereof when the legislature cannot be convened." 



The Presidency 177 

the President could be restrained by law. When mili- 
tary law succeeds the civil law, the President, as the 
military chieftain, becomes absolute. This ap- 

, . '-'-; , . 1-1,1 Extent of 

plies only to the territory over which the oper- Executive 
ations of war apply. Without waiting for a . Power 
meeting of Congress, called for July 4, 1861, 
the President proclaimed a blockade of the Southern ports, 
called for seventy-five thousand volunteers, enlisted forty- 
two thousand three-year men into the service, and in- 
creased the regular army by twenty-two thousand men ; 
later in the war he appointed and removed generals and 
commanders, directed and controlled the movements of 
fleets and armies, executed or pardoned criminals, sup- 
pressed newspapers, arrested and imprisoned their editors 
and other agitators without trial, suspended the writ of 
habeas corpus, and, finally, exercised the vast power of de- 
claring free by proclamation all the slaves of the insur- 
rectionary States. These acts were generally approved 
by Congress, and certain of them were sustained by the 
Supreme Court in cases testing the validity of the prizes 
made for violation of the President's blockade. All these 
powers, of course, are military powers and are not to be 
thought of in connection with the President as a civil 
officer. 

The suspension of the writ of habeas corpus is a most 
important power. It is an exercise of the power of mar- 
tial law. The privilege of the habeas corpus is 

e 1 . r • -1 1-1 -r r Suspension 

one of the great muniments of civil liberty. If f the writ 
the citizen has not this right his most precious of Habeas 

-,--■«. Corpus. 

civil interests are endangered; he may be in 
danger at any time of arbitrary arrest and imprisonment. 
If a citizen is arrested and kept in custody charged with 
a crime, he applies through his attorney for the writ of 
habeas corpus. The civil judge issues the writ, command- 
ing the sheriff, or marshal, or executive officer, to have 
the body or person of the prisoner in court in order that 



i 7 8 



The American Republic 



Operation 
of the Writ 
of Habeas 
Corpus. 



examination may be had to determine whether the pris- 
oner is lawfully held. It will be the duty of the Court 
to order the prisoner to be released, or to be 
held for trial, according to the evidence. Un- 
der the right of habeas corpus the accused is 
entitled to this preliminary trial immediately or 
as soon as practicable after arrest. Formerly, in despotic 
times, princes often caused the arrest of suspected per- 
sons, or persons whom they wished to punish, and kept 
them in prison months and years without allowing the 
accused a trial in open court. The privilege of this writ 
has been one of the great objects of conflict in all the 
constitutional struggles of the past. To deny this right 
is to suspend civil liberty, to do away for a time with all 
civil rights. The Constitution recognizes that it may be 
necessary to do this ; for in civil war, or insurrection, the 
ordinary civil processes are not sufficient to preserve order 
and to overcome resistance. The courts would become 
blocked, and more drastic summary processes must be 
made use of to restore order. It is to this end the Presi- 
dent is entrusted with the military power. In the hands 
of an ambitious and unscrupulous man such power is 
very dangerous and may lead to usurpation and military 
autocracy, one of the most despicable forms of tyranny. 
It is only the stern necessity of self-preservation that can 
justify the vesting in one man of this supreme power, 
and it should be understood and emphasized that in doing 
so — in abandoning the habeas corpus and a civil trial — 
the nation, as Blackstone expresses it, is merely consent- 
ing "to part with its liberty for awhile in order to preserve 
it forever." Only such a great end can justify such 
means. Therefore the Constitution provides that only 
when imminent danger threatens the public safety is the 
Government justified in the suspension of constitutional 
and civil government and the substitution of martial law. 
The Constitution says: "The privilege of the writ of 



The Presidency 179 

habeas corpus shall not be suspended, unless when in cases 
of rebellion or invasion the public safety may require 
it " J 

"•• Is it an 

Controversy has arisen as to whose function Executive 
it is to suspend the writ of habeas corpus. Does t0 De " e °mine 
it belong to the President or to Congress to when to 
decide when the public safety requires it? USP writof 

In 1 861, a direct conflict arose on this subject Habeas 

between the executive and the judicial power. 
In May, 1861, John Merryman, of Baltimore, was ar- 
rested, charged with aiding armed hostility against the 
Government, of communicating with rebels, The 

and of various acts of treason. He applied Merryman 
by petition to Chief Justice Taney for a writ 
of habeas corpus and a hearing. The Chief Justice 
issued the writ, but General Cadwalader declined to re- 
spond, alleging that he was authorized by the Presi- 
dent of the United States to suspend the writ of habeas 
corpus for the public safety. An attachment could not 
be executed against the commander by a posse comi- 
tatus against a superior military force, and the Chief 
Justice was powerless to release the prisoner by civil pro- 
cess. In this case President Lincoln claimed the right 
not only to suspend the writ himself at his discretion, but 
to delegate that discretionary power to a military officer, 
and to leave it to him to determine whether he will or 
will not obey a judicial writ that may be served upon 
him. Chief Justice Taney affirmed, that under Taney's 
the Constitution and the laws, neither the Presi- opinion, 
dent can suspend the privilege of the writ of habeas corpus , 
nor can he authorize any military officer to do so. The 
Chief Justice asserted that previously it was a point of 
constitutional law upon which there was no difference of 
opinion, and that it was admitted on all hands that the 
privilege of the writ could not be suspended except by 
1 Art. I, Sec. 9, CI. 2. 



180 The American Republic 

Act of Congress. In English law and history it had al- 
ways been a legislative act and not an executive act. 
This was also the opinion of Chief Justice Marshall as to 
the law in America. 1 

' ' When the conspiracy of which Aaron Burr was the head 
became so formidable, and was so extensively ramified as to 
justify, in Mr. Jefferson's opinion, the suspension of the writ, 
he claimed, on his part, no power to suspend it, but com- 
municated his opinion to Congress, with all the proofs in his 
possession, in order that Congress might exercise its discretion 
upon the subject, and determine whether the public safety re- 
quired it. And in the debate which took place upon the sub- 
ject no one suggested that Mr. Jefferson might exercise the 
power himself, if, in his opinion, the public safety demanded 
it." 2 

After giving an argument in support of his view, the 
Chief Justice declared that a military government had 
been substituted for the government of the Constitution, 
ordered his opinion filed, and a copy sent to the Presi- 
dent, with a call upon him "to perform his constitutional 
duty to enforce the laws ; in other words, to enforce the 
process of this court." 3 The dictum of Chief Justice 
Marshall was thus reasserted as a positive ruling, and 
this ruling has been concurred in by a series of decisions 
in the United States and State courts, and by other 
recognized authorities. 

President Lincoln's Attorney-General advised him that 

1 Bollman case. 

3 Opinion of Chief Justice Taney in ex parte Merryman, McPherson's 
History of the Rebellion, p. 155. See ex parte Bollman and Swartwout, 
4 Cranch, 100, per Marshall, C. J. ; Thayer's Cases in Constitutional Law, 
vol. ii., pp. 2374-2375. 

"Taney quotes Story and Marshall in support of his view. For reply, 
see the argument of Hon. Reverdy Johnson in Moore's Rebellion Records, 
vol. ii., p. 185, and the argument of Attorney-General Bates in McPher- 
son's History of the Rebellion, p. 158. 



The Presidency 181 

it was for the President alone to pronounce upon the po- 
litical considerations which determine in what cases a sus- 
pension of the writ of habeas corpus might take 

1 -i Attorney- 

place, and that the authority conferred upon General 

him by the Constitution was in no wise affected Bates ' s view 

,, -11-11 rr-.i on Suspension 

by the powers with which the act of 1789 had of Habeas 
invested the judges with regard to the writ of corpus. 
habeas corpus. A note of Secretary Seward to Lord 
Lyons, in October, 1861, contains a good summary state- 
ment of the claims of executive power in this respect. 

" It seems necessary to state that Congress is by the 
Constitution invested with no executive power or respon- 
sibility whatever, but, on the contrary, the Presi- secretary 
dent of the United States is, by the Constitution Seward, 
and laws, invested with the whole executive power of the 
Government, and- charged with the supreme direction of all 
ministerial agents, as well as of the whole land and naval 
forces of the United States, and that, invested with these 
ample powers, he is charged by the Constitution and laws 
with the absolute duty of suppressing insurrection, as well as 
of preventing and repelling invasion, and that for these pur- 
poses he constitutionally exercises the right of suspending the 
writ of habeas corpus whenever and wheresoever and in what- 
soever extent the public safety, endangered by treason or in- 
vasion in arms, in his judgment requires." 1 

" If it be said that these acts of the President in time of war 
are unconstitutional, the answer is, that as commander-in-chief 
of the army and navy, the President has the constitutional 
power to employ the means recognized by the laws of war as 
necessary to conquer the enemy. Congress can pass no law 
which can deprive the President of the power conferred in 
creating him commander-in-chief." 2 

1 Cited in Stevens's Sources of the Constitution of the United States, pp. 
162, 163. See also North American Review, November, 1880. 

2 Landon, Constitutional History and Government of the United States ', 
p. 205. 



1 82 The American Republic 

In his conduct of a war the President must have all 
the powers recognized by the laws and usages of war. 

President Hayes is represented as speaking of the war 
powers of the President as follows : 

" The President may at any time force Congress into war. 
The complicate relations with foreign powers renders this 
always easy. No man has yet defined the war 
Hayes on powers or placed a limit on them. The executive 
the war power is large because not defined by the Consti- 
tution. The real test has never come, because the 
Presidents have, down to the present time, been conservative 
men, and have kept within limited range. The law of usage 
regulates the administration. But if a Napoleon ever became 
President he could make the Executive almost what he wished 
to make it. The war power of President Lincoln went to 
lengths which could scarcely be surpassed in despotic principle. 
This power has been described by Mr. Bryce as the power of 
a dictator." 1 

The appointing power is one of the chief functions of 
the President, and it probably gives him more real po- 
The litical influence than any other function con- 

Appointing ferred upon him. He is charged "to see that 
the laws be faithfully executed " ; and, conse- 
quently, he must be allowed to select and control the 
persons by whom the laws are to be executed. It will 
be seen from the language of the Constitution a that Con- 
gress can greatly reduce the power of the President over 
appointments. Congress may by law specify certain 

1 Stevens's Sources of the Constitution of the United States, p. 169. 

2 " With the advice and consent of the Senate, he shall appoint am- 
bassadors, other public ministers and consuls, judges of the Supreme Court, 
and all other officers of the United States whose appointments are not 
herein otherwise provided for and which shall be established by law ; but 
the Congress may by law vest the appointment of such inferior officers, as 
they think proper, in the President alone, and in the courts of law, or in 
the heads of departments." — Constitution, Art. II., Sec. 2, CI. 2. 



The Presidency 183 

qualifications for appointees, determine the time and con- 
dition of their tenure, and provisions for their promotion. 
It was of course not supposed at the origin of the Consti- 
tution that the President would ever make appointments 
or removals from political motives, or that the Senators 
would take from him the initiative and control in ap- 
pointments. 1 From the wonderful growth of the coun- 
try and the resulting great army of appointive offices, it 
will be obvious what a tremendous political power the 
President might exercise if he chose to use his executive 
power to erect into a great machine, into an organized 
and disciplined corps, all his subordinates for the promo- 
tion of his ends. With one hundred and fifty thousand 
subordinates, commanding a hundred millions in salaries, 
it would be difficult to estimate the tremendous power 
the President could wield if he chose to use the powers of 
his office corruptly. 

In 1789, during the first session of Congress a debate 
occurred in that body involving the power of the Presi- 
dent to remove an officer appointed by him The Power 
with the advice of the Senate. The Senate's of Removal, 
consent being necessary to appoint, should it also be 
necessary to removal? This debate arose on a bill pro- 
viding for the organization of the State Department. 
The bill originally contained a provision conferring the 
power of removal upon the President, but this was finally 
struck out as being superfluous, and a clause was substi- 
tuted which took it for granted, or as clearly implied, 
that this power belonged to the President. 

In the debate on this subject it was recognized by all 2 
that, while the Constitution did not declare by whom the 

1 For the abuses in these directions seethe subjects, "Senatorial Cour- 
tesy," pp. 225 et seq., and the " Spoils System," in the author's Political 
Parties and Party Problems. 

2 Except Mr. Smith of South Carolina, who held that all administrative 
offices should be held by the tenure of good behavior and that removals 
be effected only by impeachment. 



1 84 The American Republic 

power of removal should be exercised, there must exist 
somewhere a prompt and summary power of removing 
an incompetent, unfit, or corrupt officer for offences short 
of violations of the law. Two principal views were held : 

1. The President and the Senate should be combined 
in removals, as in appointments. Otherwise, it was 

thought, the influence of the Senate would be 
vfewsTfto entirely nugatory in restraining the President. 
Power of Congress cannot confer on the President what 

the Constitution has not conferred, and it 
would be better to leave the courts to determine where 
the power rests. 

2. The other view asserted that the power of removal 
should rest with the President alone. 

In his defence of the Constitution, Hamilton had held 
that the consent of the Senate would be necessary to dis- 
Hamiiton's place as well as to appoint. It was upon this 
view. check he relied to prevent a sweeping revolu- 

tion in the offices upon a change of administration, — if 
an unscrupulous President were to be the sole dispenser 
of the offices and should attempt a change for the sake of 
bringing in personal or party favorites. 1 Madison, Ham- 
ilton's colaborer in the Federalist, took a different view. 
Madison's As to the danger that a President might abuse 
view. the power of removal by using it for personal 

and party purposes, Madison asserted that the wanton re- 
moval of meritorious officers would subject the President 
to impeachment and removal from his own high trust. 

" Believing that no President would so abuse the powers of 
his office, and that he would be impeached if he did, Madison 
insisted that the power of removal should rest solely with the 
President. He and others in Congress urged that legislative 
action should remove all doubt on this subject; that what was 
omitted in the Constitution should be supplied by legislation; 

1 See Federalist, No. 77, and note in F ord's Federalist, pp. 511, 512. 



The Presidency 185 

that the removal of executive officers was an act so executive 
in its character and so intimately related to the execution of 
the laws, that it was clearly among the President's constitu- 
tional prerogatives, that participation of the Senate in removals 
would break down the separation of the powers deemed so 
essential in the Constitution. If a removal be desired by the 
President and denied by the Senate, the President would still 
be charged with the faithful execution of the laws while de- 
prived of the loyalty and constancy of his subordinates and 
assistants. These would resent his efforts to remove them and 
would seek to thwart him in his work and they would rely 
upon another branch of the Government for their retention, 
and this would lead to defiant insubordination." 1 

Congress adopted Madison's view — by the casting 
vote of the Vice-President — and recognized the power of 
removal as resting with the President alone. 
This interpretation of the Constitution went contest 

unquestioned for a period of forty years, until under 

Jackson's abuse of this power by his sweeping 
removals. His wholesale treatment of public places as 
party spoils led many to question the wisdom of the 
decision of 1789. The alarming growth of executive 
patronage 3 and the use to which it was now put led both 
Mr. Webster and Mr. Calhoun, two of America's greatest 
constitutional lawyers, to array themselves against Madi- 
son's view of the sole executive power of removal. The 
abuse of a power, however, is no evidence of its unconsti- 
tutionality. The spoils system and the danger The «« Four 
from executive patronage had been directly Years' Law," 
promoted by the notable law of 1820, known as 
the "four years' law." This law provides a limited term 

*See ex-President Cleveland on "Executive Independence," Atlantic 
Monthly, June and July, 1901 ; Rives's Madison, vol. iii., p. 35; Annals 
of Congress, vol. i., p. 503. 

2 See Calhoun's famous report on this subject, Jan. 9, 1835, and his 
Speeches of Feb., 1835, Works, vol. ii., pp. 426, 446. 



1 86 The American Republic 

of four years for the offices mentioned. It was gotten 
up by Mr. Crawford, Secretary of the Treasury, for the 
purpose, as John Quincy Adams states, of securing "for 
Mr. Crawford the influence of all the incumbents in office 
upon peril of displacement, and of five or ten times as 
many ravenous office-seekers eager to supplant them." x 
The law itself vacates the offices, and this enables a 
President to displace satisfactory officers without the re- 
sponsibility or odium of dismissing them, and to reward 
his party and personal favorites without exercising the 
power of removal. Madison's view and the Congres- 
sional decision of 1789, which gave the sole power of re- 
moval to the President, required positive executive action 
to cause a vacancy. The law of 1820 vacated the entire 
civil service of the country during the term of every 
President, who, 

11 without an order of removal, could fill every place, small or 
large, from Maine to California, from the mouth of the Co- 
lumbia to the Keys of Florida, at his pleasure. In 
Political contemplating the possible results of so vast a power 
Power of Mr. Calhoun said, in 1835, that, if it should ever 
deal with a corps of one hundred thousand office- 
holders, the friends of liberty might surrender in despair, for 
the people could not resist them for six months." 3 

The use of the offices to promote party ends and to 
advance legislation that the President favors is one of 
the most palpable and dangerous forms of bribery. It 
stimulates both congressional intrigue and executive 
ambition, and it tends to the corruption of our whole po- 
litical life. The President who buys votes by appoint- 
ments betrays the national honor and becomes a corrupter 

1 Speech of George William Curtis, Proceedings of National Civil Service 
Reform League, 1883, Orations of Curtis. 

2 Address of George William Curtis, Proceedings of National Civil Ser- 
vice Reform League, 1883. 



The Presidency 187 

of public morals. 1 Yet notwithstanding the grave dangers 
that were to be apprehended from this source, the great 
arguments of Webster and Calhoun against unlimited 
executive removal, combined with the powers of appoint- 
ment, did not succeed in changing the constitutional in- 
terpretation in this regard. Congress did not interfere in 
removals until the notable conflict with Presi- 

- _ - t _, Tenure of 

dent Johnson in 1867. In that year the Tenure office Act, 
of Office Act was passed, for the avowed l867 - The 

. , , rf . . Conflict with 

purpose of preventing removals from office by president 
President Johnson. The majority thus set Joh ^ n £) ^ 1 e s r 
aside the congressional construction given to 
the Constitution seventy-eight years before. This Act 

1 Responsible writers have charged this serious abuse of his office upon 
President Cleveland in connection with legislation in 1893. " There he 
stood, unmindful of God, man, or devil, putting aside past promises and 
future obligations with the sublime shamelessness of dire need — stolid, un- 
moral, buying votes with offices with no more emotion in his choice of pur- 
chasable swine than a hog-buyer in the pens. The public service was filled 
with incompetent men, recommended by purchasable national legislators, 
who traded their votes for this patronage." — William Allen White, in Mc- 
Clure's Magazine, January, 1902. This well illustrates the menacing 
power of the Presidency when the vast powers of the office are in the hands 
of a man who will consent to use his appointments corruptly in order to 
carry through a legislative policy. " In this instance Mr. Cleveland did 
not confine his interest in legislation to his message, which was his constitu- 
tional limitation. But the observer of events in Washington saw the Exec- 
utive bring to bear upon the legislative branch of the Government an 
amount of personal pressure unequalled, perhaps, in the history of the 
Republic. Even now one can recall how the emissaries of the President 
thronged the halls of Congress ; how strange and remarkable conversions 
were wrought through influences which emanated from the White House 
and which it was not politic to withstand. When the bill wiping the silver- 
purchasing law from the statute books went to the Senate, it did not com- 
mand a majority of that body ; but during the three months of acrimonious 
debate the power of the Executive was exerted to such an extent as to win 
the support of those Senators whose votes were needed to accomplish the 
Presidential purpose. No one who is at all familiar with the inner history 
of that memorable and dramatic struggle will dispute these statements." — 
" The Growing Powers of the President," H. L. West, Forum, March, 
1901. 



1 88 The American Republic 

conferred upon the Senate the power of preventing the 
removal of officers without the consent of that body. It 
was provided that during a recess of the Senate an officer 
might be suspended, but this was to be done only in case 
it was shown by evidence satisfactory to the President 
that the incumbent was guilty of misconduct in office, or 
crime, or when for any reason he should become in- 
capable or legally disqualified to perform his duties ; and 
that within twenty days after the next session of the 
Senate the President should report to that body such 
suspension, with the evidence and reason for his action in 
the case. "If the Senate concur in such suspension and 
consent to the removal of such officer they should certify 
to the President who may then remove such officer and 
appoint another. But if the Senate refuse to concur in 
such suspension, such officer so suspended shall forth- 
with resume the functions of his office." * This Act was 
passed with the design of forcing an unwelcome Cabinet 
officer upon the President, and in other respects tying 
his hands in the administration of his office. The Act 
was probably intended to be personally degrading to 
President Johnson and could only have grown out of the 
abnormal excitement created by the dissensions between 
the two departments of the Government. 3 It presented 
the question whether the members of the President's 
Cabinet, his trusted associates and advisers, owe greater 
obedience to the Senate than to their Executive Chief in 
affairs relating to executive functions. 

On the 5th of April, 1869, just a month after the in- 
auguration of President Grant, Congress and the President 
then being in party harmony, the provisions of 
office the Tenure of Office Act that interfered with 

Act uncon- ^ e President's power in removal were repealed. 

stitutional. _ \ t • t-» • ■, 

They had served their purpose against President 
Johnson. This prerogative of the President is now virtu- 

1 Act of 1867. 2 Blaine, vol. ii., p. 274. 



The Presidency 189 

ally restored, and it is now generally held by publicists 
of both parties that the Tenure of Office Act was un- 
constitutional and would have been so held by the courts 
if it could have been tested. 1 In 1886, what was left 
of the Tenure of Office Act was repealed, and, as Pres- 
ident Cleveland says, there was 

" thus repealed the last vestige of statutory sanction to an en- 
croachment upon constitutional executive prerogatives. In 
the matter of appointment, the President is to be the inde- 
pendent agent of the people, representing a co-ordinate branch 
of their Government, charged under his oath with responsibili- 
ties which he ought not to avoid or share ; and invested with 
powers not to be surrendered, but to be used under the guid- 
ance of patriotic intentions, — answerable to his conscience and 
to the people. ' ' a 

The Executive Departments have been created from 
time to time by Acts of Congress. The heads of these 
departments compose the Cabinet, though the 
"Cabinet" is not recognized in the Constitu- Executive 
tion. Only three departments were created in Departments. 

1 -r^ r r- 1 t-v The Cabinet. 

1789, the Department of State, the Department 
of the Treasury, the Department of War. The office of 
Attorney-General was established in 1789, and that officer 
has always had a place in the President's Cabinet, though 
the separate department over which he presides — the 
Department of Justice — was not erected until 1870. 
The Navy Department was added in 1798 ; and the De- 
partment of the Post-Office was made a Cabinet position 

1 See Blaine's Twenty Years of Congress \ vol. i., pp. 267-274. See, also, 
ex-President Cleveland's articles on " Executive Independence," Atlantic 
Monthly, June and July, 1901 ; President Johnson's Message, vetoing the 
Tenure of Office Act, March 2, 1867 ; Richardson's Messages and Papers 
of the Presidents, vol. vi., p. 492 ; the Commentaries of Kent and Story 
are quoted by President Johnson (the message was probably prepared by 
Secretary Seward), and the case is cited in which the question was con- 
sidered by the Supreme Court, ex parte Hennen, 1839, 13 Peters, 139. 

8 Atlantic Monthly, July, 1900. 



190 The American Republic 

in 1829, though the office itself had existed from colonial 
times, Franklin having distinguished the office by his 
service in it. The Interior Department was added in 
1849, and the Department of Agriculture in 1889. The 
Department of Commerce and Labor is now (1903) about 
to be added to the Cabinet offices, and it has been fre- 
quently proposed to bring the Bureau of Education into 
a Cabinet dignity. 

' ' The president may require the opinion in writing of the 
The Consti- P r i nc ip a l officer in each of the Executive depart- 
tution and ments upon any subject relating to the duties of 
the cabinet. their resp e C tive offices." 

This is all that the Constitution says anywhere about 
any such body as a Cabinet. It is evident that the Con- 
stitutional Convention did not intend to constitute a 
council like the English Privy Council. All that was 
contemplated was that the President should consult the 
heads of the several departments separately about the 
duties of their respective offices, not that he should as- 
semble them together for consultation and advice on the 
general policy of the administration. He might follow 
this advice or not, as he chose ; and he could proceed with 
the most important presidential matters without asking 
it, as John Adams did in our French relations in 1800, 
and Jefferson in the Louisiana Treaty in 1803, and in the 
Monroe-Pinkney Treaty of 1806. Washington generally 
pursued the practice of consulting his Cabinet members 
individually. Before making up his mind what policy he 
should pursue, he asked the opinions of his Secretaries 
in writing. Some of our most valuable historical State 
papers came to us in this way, — in the written opinions 
of Jefferson and Hamilton prepared at Washington's re- 
quest. 1 The Cabinet as we see it to-day is the product 

1 Note especially the opinions on our neutrality policy and the constitu- 
tionality of the First United States Bank. 



The Presidency 191 

of evolution. Whatever law regulates its proceedings 
and its relations to the President and to Congress is the 
law of the unwritten constitution. Under John Adams 
some of the Secretaries presumed to consider themselves 
as co-ordinate integral parts of the Executive Department, 
and as not answerable to the President. Pickering, Ad- 
ams's Secretary of State, went so far as to act without 
regard to the harmony of the Administration as a whole, 
and he even attempted to thwart the publicly announced 
policy of his chief. Though Congress in creating the de- 
partments had ruled in favor of the President's power 
to remove a Cabinet officer without the consent of the 
Senate, Adams's removal of Pickering for thus attempt- 
ing to create this impossible situation caused considera- 
ble political friction and opposition. Jefferson dominated 
his Cabinet, but he did it more by his personal influence 
than by his official power. 

"When a question occurred of sufficient magnitude to re- 
quire the opinions of all the heads of departments, he called 
them together, had the subject discussed, and a vote taken, in 
which he counted himself as but one. But he always seems to 
have considered that he had the power to decide against the 
opinion of his Cabinet. . . . When there were differences 
of opinion, he aimed to produce a unanimous result by dis- 
cussion, and almost always succeeded. But he admits that 
this practice made the Executive, in fact, a directory." * 

Some Presidents have been more influenced by their 
Cabinets than others. President Buchanan was much 
worried by his Cabinet because he was not strong enough 
to insist upon his own will. Lincoln decided upon his 
Emancipation Proclamation, and he submitted it to his 
Cabinet merely for suggestion. 3 In departmental matters 

1 G. T. Curtis, cited in Walker's Making of the Nation, p. 91. 

2 Stevens's Sources of the Constitution, p. 168, notes on a conversation 
with President Hayes. 



19 2 The American Republic 

the President gives a wide latitude to the Secretary, but 
occasionally he may overrule the Secretary. 

The head of a department is not merely the active 
administrator of the daily business of his department. 
Duties of This will be attended to by the Assistant Secre- 
the cabinet taries and by the heads of bureaus and divisions. 
The Secretary must know his department, its 
needs, and its forces, that it is doing well, and that his 
plans and those of his chief are being carried out. But 
the Secretary's chief function is to act as adviser of the 
President not only as to the matters of his department, 
but as to the general welfare and policy of the country. 
He should, therefore, be in harmony with the policy of 
the President. He should be of the President's party 
and of the President's wing of the party, and in friendly 
personal relations with the President. Washington at- 
tempted to bring into his Cabinet men of radically differ- 
ent political opinions. Jefferson and Hamilton did not 
naturally belong to the same official family. This effort 
of Washington to bring them into the same Administra- 
tion and to govern without reference to party came from 
the fact that he deplored the party spirit as dangerous to 
the country's interests, and his conception of the Presi- 
dency was that, like the English Crown, it should be 
above party, fair to all, partial to none. But our party 
history was destined to make the Presidency an office for 
party leadership, and since the first distinctive party vic- 
tory under Jefferson, in 1800, the President's Cabinet 
officers have been in party harmony with the President 
and with one another. It is now one of the well-estab- 
lished understandings of the Constitution that if a Cabinet 
member cannot agree with the President and loyally and 
harmoniously carry out the President's policy, he should 
resign or the President should have the right to remove 
him. The Cabinet is the President's official family, and in 
general public policy they are all expected to stand to- 



The Presidency 193 

gether. In 1841, Mr. Tyler's Cabinet resigned because they 
felt that the President was abandoning his party principles. 
They would no longer be identified with an administra- 
tion to which they were really opposed, and they wished 
to rebuke the President. 1 In 1866, disaffection arose in 
President Johnson's Cabinet. Mr. Speed, the Attorney- 
General, Mr. Dennison, the Postmaster-General, and Mr. 
Harlan, the Secretary of the Interior, all resigned because 
they thought it improper to retain office under a Presi- 
dent with whom they differed so widely on the question 
of Reconstruction. Mr. Stanton, the Secretary of War, 
though likewise opposing President Johnson, remained in 
the Cabinet. His purpose was to act as the minister of 
Congress, to defeat the President's policy, and protect the 
country against him. The majority in Congress sustained 
Stanton, and by the Tenure of Office Act prevented 
the President from removing him. They transferred 
many military functions of the President to the Secretary 
of War, and, in effect, deprived the President of his 
constitutional prerogatives. Not to speak of Stanton's in- 
delicacy in seeking to remain with a President not want- 
ing him, this would have been to change our system from 
the Presidential system, in which the minister is responsi- 
ble to the President, to the Parliamentary system, in 
which the minister would be responsible to Congress. 

" The President, not the Cabinet, is responsible for all the 
measures of the Administration, and whatever is done by one 
of the heads of department is considered as done by the Presi- 
dent, through the proper executive agent. In this fact con- 
sists one important difference between the Executive (King) 
of Great Britain and of the United States; the acts of the 
former being considered as those of his advisers who alone are 
responsible therefor, while the acts of the advisers of the 

1 Mr. Webster retained his place in order to complete important negotia- 
tions, — the Webster- Ashburton Treaty, — though he was in party harmony 
with his colleagues and condemned Tyler's party course. 
13 



194 The American Republic 

American Executive are considered as directed and controlled 
by him." 1 

REFERENCES ON THE TREATY-MAKING POWER 

1. Gallatin's speech on Jay's Treaty, March, 1796. 

2. Henry Adams, Life of Gallatin. 

3. American Orations, vol. i., Speech of Gallatin, and the Historical 

Note on Jay's Treaty. 

4. Writings of Washington, vol. xiii., pp. 178-179, reply to the request 

for the papers and instructions to Jay. 

5. Works of Jefferson, vol. iv. (1869), letters to Giles, Monroe, and 

Madison, pp. 132-135. 

6. Madison's Works, vol. i., p. 524, letter to Pendleton. 

7. Jay, in No. 64 of the Federalist. 

8. Blaine's Twenty Years in Congress, vol. ii., pp. 333 et sea., on " The 

Purchase of Alaska." 

9. " The Treaty-Making Power under the Constitution," by Simon G. 

Croswell, American Law Review, vol. xx., p. 513. 

10. The Nation, vol. xxxix., p. 516. 

11. Speeches of Gen. Banks and Hon. C. C. Washburn on " The Purchase 

of Alaska," Congressional Globe, vol. lxxxii., appendix, p. 393. 

12. Boutwell's Constitution of the United States at the End of the First 

Century. 

13. Treaty-Making Power. See "A Mistake of the Fathers," Harper's 

Weekly, June 22, 1901. 

14. The Treaty-Making Power of the United States. A Treatise. Two 

vols. By Charles Henry Butler. This work treats of all 
phases of the treaty power — historical, legal, and constitutional. 

15. Von Holst, Constitutional Law. 

16. Cooley, Constitutional Law. 

REFERENCES ON THE WAR POWERS OF THE PRESIDENT 

1. Curtis, Benj. R., pamphlet, written in October, 1862. Found in G. 

T. Curtis'' s Constitutional History of the United States, vol. ii., ap- 
pendix, title, "Executive Power." 

2. North American Review, vol. cxxx., Feb., 1880, James C. Welling, 

on "The Emancipation Proclamation"; vol. cxxxi., Dec, 1880, A. 
A. Ferris, on "The Validity of the Emancipation Edict"; vol. 
cxxxi., Nov., 1880, W. B. Lawrence, " The Monarchical Principle 
in our Constitution." 

* Cooky's Blackstone, Commentaries, book i., p. 231, n. 6, cited by 
Stevens's Sources, p. 171. "On the President's Cabinet." See Harper's 
Weekly, Oct. 12, 1901. 



The Presidency 195 

3. Fisher, Sidney George, The Trial of the Constitution (1862), chap. 

iii., "Executive Power." 

4. Von Holst, Constitutional Law of the United States, translated by 

Mason, pp. 190-198. 

5. Sumner, Charles, Works, vol. vii., pp. 138-140. 

6. Rhodes, History of the United States, vol. iii., pp. 394-395, 437-442, 

553-558 ; vol. iv., pp. 60-75 (confiscation act), 157-163 (emanci- 
pation), 165-172 (arbitrary arrests), 212-215 (emancipation), 223- 
239, 245-253 (arbitrary powers). See references on these pages in 
Rhodes. 

7. Winthrop's Military Law and Precedents, ed. of 1895. 

8. Thayer's Cases in Constitutional Law, ex parte Merryman, ex parte 

Milligan. 



CHAPTER IV 

THE SENATE 

THE present Senate of the United States, if all elec- 
tions were complete, would consist of ninety mem- 
Composition bers, two members from each of the forty-five 
of the Senate. States. l By the Constitution which created 
the Senate, the Senators are chosen by the legislatures of 
Method of their respective States for a term of six years, 
Election. anc j g^fr Senator has oae vote. 

A Senator is required : 
Qualifications To be thirty years of age ; 
of senators. To have been nine years a citizen of the 
United States; and 

To be, at the time of his election, an inhabitant of that 
State for which he is chosen. 

No Senator can hold any other office under the United 
States. 

The Vice-President of the United States is the presid- 
ing officer of the Senate. He votes only in case of a tie. 
Th e The Vice-President, unlike the Speaker of the 

President of House, is not a member of the body over which 

the Senate: , . 

Right to he presides. He can therefore claim no right 
Vote. to vo te, except in case of a tie. The Senate 

may choose, with its other officers, a President pro tem- 
pore, who presides in the absence of the Vice-President, or 

1 The English House of Lords has about 592 members ; the French 
Senate, 300 ; the German Bundesrath, 58. The latter body represents the 
German states. 

196 



The Senate 197 

when the latter shall exercise the office of President of the 
United States. The President pro tempore, as a member 
of the Senate, may claim a vote on any question 
at issue, but, having voted once, he cannot, of President 
course, vote again even in case of a tie. Al- pro Tempore - 
ways in a tie vote the pending measure is lost. 1 

At the first organization of the Senate its members were 
divided, according to the Constitution, into three classes, 
— the seats of the Senators of the first class to classes of 
be vacated at the expiration of the second year, Senators, 
of the second class at the expiration of the fourth year, 
of the third class at the expiration of the sixth year. 
Senators from a new State are assigned by lot to two of 
these classes. One of the newly elected Senators may 
fall into a class whose term expires in two years, the 
other into a class whose term expires in four years, or in 
six. By this provision the two Senatorships from the 
same State can never be vacant at the same time. So 
when Senators are elected from a new State one of them 
may serve for only two years and the other for four. 
However, such Senators are usually re-elected by their 
States for a full term. 

~ The Senate is called a continuous, or permanent body, 
because it has in every Congress two-thirds of 

. 1 • 1 — • The Senate a 

the same members as in the Congress just pre- Permanent 
ceding. The body does not change all at once, or Continuous 
as do assemblies created by a single popular 

1 In 1868, while the Senate was sitting as a court in the impeachment trial 
of President Johnson, Senator Wade, of Ohio, was President pro tempore 
of the Senate. His right to vote on the charges of impeachment was dis- 
puted, although the Chief Justice was presiding, on the ground that Wade 
was directly personally interested in the result of the vote, since if John- 
son had been removed Wade would have become acting President. Wade 
based his right to vote on the constitutional provision that no State shall 
be deprived of its equal representation in the Senate except by its own con- 
sent, and if his right to vote were denied Ohio would have but one vote in 
the Senate. By the decision of the Senate, Wade was allowed to vote. He 
voted for the impeachment and removal of the President. 



198 The American Republic 

election, but undergoes an ' ' unceasing process of gradual 
renewal." <( Always changing, it is forever the same." 
This permanent character qualifies the Senate to help 
conduct the foreign policy of the nation and adds to the 
traditional dignity of the Senate. 1 

- A vacancy from a State, occurring by death or resigna- 
tion during a recess of the State legislature, is filled by 
va n i in temporary appointment by the State governor 
the Senate, until the next meeting of the legislature, which 
How Filled. ghall then fiU the vacancy> It has been recently 

determined, however, that the Senate, which is the judge 
of the election of its own members, will not recognize 
the appointment by a governor in case an intervening 
legislature fail to elect. The failure of a State to elect, 
when opportunity is offered to its legislature, is con- 
strued as equivalent to the State's consent that it be 
deprived of equal representation in the Senate. The 
governor may appoint only to vacancies " which hap- 
pen during the recess of the legislature." " Happen" 
is here interpreted to refer only to vacancies created 
by accident, not to those created by law. It is the 
duty of a State to provide for election in advance of a 
legal vacancy. Vacancies may ■ ' happen ' ' by death, 
resignation, expulsion, and by accepting an incompatible 
office. But the governor may not fill any vacancy 
which he finds existing when the legislature is in recess. 
In that case, a senatorial candidate who has the favor 
of the governor would need to have only enough sup- 
porters in the legislature to prevent an election. If 
the legislature be forced to adjourn without electing the 
Senator, the governor could take the selection into his 
own hands. 2 

1 Bryce, vol. i., p. 103. 

2 See Foster on the Constitution. Case of Lee Mantle of Montana, 
Aug. 23, 1893, Congressional Globe. Speech of Senator Burrows of Mich- 
igan, in the Quay case, April 14, 1900. 



The Senate 199 

Such are the more or less familiar constitutional pro- 
visions touching the composition of the Senate. 

The origin of the Senate is of historical in- origin of 
terest and of political significance. the Senate - 

As is well known, the so-called Congress of the old 
Confederation consisted of but a single house. This 
body, as we have seen in our notice of the old Confedera- 
tion, was more of a diplomatic body than a legislature. 
We have seen that, in the old Congress, questions were 
determined by the voices of States, and the 

r ~ 1 • • 1 1 The Congress 

voice of any one State was equal in weight to the f the ow Con- 
voice of any other. The members were State federation: 

1 1110 A Diplomatic 

delegates, — they were elected by States, were ra tner than a 
paid by the States, and could be recalled by Law-Making 
the States. The Congress was to consider cer- 
tain definite subjects, which the States, through their 
delegates, had assigned to it for consideration. The old 
Congress was lacking in the two prime requisites of a 
governing body : it could not enforce a law nor collect a 
tax. There is a political absurdity involved in the asser- 
tion which we sometimes hear, that the old Confederation 
could make laws but could not enforce them ; for a so- 
called government which has no law-enforcing power has 
really no law-making power. What such a body makes 
may be a proclamation, or resolution, or recommenda- 
tion, but not a law. It is evident that the men who 
framed the Confederation did not look upon its Congress 
as a law-making body, except to a very limited extent, 
and that strictly specified. If a law-making body as part 
of a real government had been intended by our fathers 
when their States formed a league in 1781, they would 
doubtless have formed their Congress after the pattern of 
every government, save two, of which they had any 
working experimental knowledge. That is, they would 
have given their legislature the bicameral, not the uni- 
cameral, form. The bicameral form of legislature is the 



200 The American Republic 

form of two houses. All of the original State legisla- 
tures, except Pennsylvania and Georgia, had the bicam- 
The eral system, and all the later States, except 

Bicameral Vermont in its early history, have followed this 
pattern. The advantage of two houses was 
thought to be that one should act as a check on the haste 
and error of the other. In several of the Colonies the up- 
per houses were only small executive bodies, appointed to 
assist the governor, with power to check legislation by a 
suspensive veto. But after the Revolution these soon 
came to be co-ordinate houses of legislation. In America 
the need of two chambers came to be deemed "an axiom 
in political science, on the belief that the innate tendency 
of an assembly to become hasty, tyrannical, and corrupt 
needs to be checked by the coexistence of another house 
of equal authority." ' 

This theory was pretty deeply imbedded in the minds 
of the framers of our Constitution. So when they came 
together in the Constitutional Convention of 1787, to 
provide for a new Congress — for a really effective govern- 
ment — the first two propositions of importance coming 
before them were : 

(1) That the right of voting in the new national legis- 
lature ought to be proportional either to wealth or to 
inhabitants ; that it ought not to be, as it had been, one 
State, one vote ; 

(2) That this legislature should consist of two houses. 
The proposition for a bicameral, or a two-house, legis- 
lature was agreed to on the second day of the Convention 

1 The Constitution of Pennsylvania of 1786, that of Georgia of 1777, and 
the two Constitutions of Vermont, 1786 and 1793, all provided for only 
one house in the Legislature. Each provided for an Executive Council 
with power of checking or delaying the acts of the law-making body. 
Georgia created two houses in 1789, Pennsylvania in 1790, and Vermont 
in 1839. On the division of the legislature, see Bryce, vol. i., p. 480; 
Kent's Commentaries on the American Constitution, vol. i., pp. 208-210; 
Story's Commentaries , pp. 548-590. 



The Senate 201 

without discussion or dissent, except that of Pennsylvania, 
"given probably from complaisance to Dr. Franklin, who 
was understood to be partial to a single house of legis- 
lation." 1 The proposition for an upper house was never 
again brought into question in the Convention. A second 
chamber was a part of their ancestral inheritance from 
England, and a part of the colonial governmental form. 
Mason of Virginia said : "In two respects the mind of the 
people of America is well settled : First, in an attachment 
to republican government ; secondly, in an attachment to 
more than one branch in the legislature." "The bi- 
cameral system, ' ' says Lieber, ' ' accompanies the Anglican 
race like the common law." 2 The unicameral system 
was common in France, but not in England. At that 

1 Madison's Journal of the Debates, p. 78, Scott edition. 

2 Historically, the idea of two chambers in the legislature was of feudal 
origin ; it grew out of certain social orders and the struggles between these 
orders. Through this idea the nobility, the Church, and the gentry each 
sought to preserve and advance its separate power and privileges in the 
State, and each of these estates had its chamber. In England these three 
merged into two, the higher clergy merging with the Lords, the country 
gentry with the Commons. But in the State legislatures of America the 
two chambers represent the same constituencies and protect the same 
interests. In our earlier history, in many of the Colonies, and later in 
some of the States, one branch of the Government was intended more 
especially to be the guardian of property, and property qualifications were 
required for membership in the Senate in several of the States. (See Fed- 
eralist, No. 54, p. 364, Ford's edition, also Webster's speech on "The 
Basis of the Senate in Massachusetts," Works, vol. iii., p. 8.) But this 
use of an upper chamber soon disappeared. It seemed that the use of the 
double system had ceased to exist when the distinctions between the con- 
stituencies to be represented had been swept away. For these reasons, and 
under these changing conditions, publicists like Franklin and Turgot 
favored a single chamber. The only basis of representation in our State 
Senates different from that of the lower Houses is a larger territory and a 
larger group of population. For the United States Senate the States 
furnished a ready-made basis of representation. There is no essential 
difference between our national Senate and House in composition, charac- 
ter, or purpose. The Senate represents the people in States, and is, like 
the House, dependent on public opinion. See the American Law Review, 
October, 1869, vol. iv. 



202 The American Republic 

time one system might have been called French, the other 
English. Our Senate, then, came into existence because 
of the preference of the colonial statesmen for the Eng- 
lish system, the only system which they had known in 
practice. 

It is often supposed that the Senate had its origin in 

the necessity of providing for equal representation of the 

States, in order that the differences between 

sentation and the large and the small States might be com- 

the Origin of promised and reconciled. "The division of 

the Senate. 

Congress into two houses supplied a means of 
settling the dispute between the large and the small 
States. ' ' 1 This division may have supplied such a means, 
but it was not made for that purpose. The bicameral 
system was determined on without reference to the dis- 
pute over equal representation. Only the purely Con- 
federate party, those who wished to retain the form of 
the old Confederation, favored the retention of only one 
House of Congress, and that because they did not wish 
to make Congress a law-making body, with power of 
legislation for individuals. The form of the Senate was 
modified by the necessity of conciliating the small States ; 
but it is evident, as we have shown, from the history of 
the Convention, that we should have had the Senate in 
some form even if there had been no conflict between the 
large and the small States. It was found to be necessary 
to provide in the Senate for a representation of statehood, 
in order to enable large and small States to come together 
under a common Constitution ; but this was done after 
the Senate itself had been fully determined upon, and it 
is important only as affecting the form of the Senate. 
The representation of statehood is neither the originative 
nor the determinative principle of the Senate. That is, 
it did not grow out of that principle, nor does the Senate 
determine questions upon that principle. It is not required 

1 Bryce, vol. i., p. 184. 



The Senate 203 

in the Senate, as it was under the old Confederation, that 
a majority of the States shall vote for a measure before 
it can be carried. Each State has two Senators, but in 
making decisions the Senate does not vote by States. A 
Senator's vote is his own, not his State's, and the two 
Senators may be members of different political parties 
and vote on different sides of the same question. Under 
the purely federal plan of voting, the two Senators would 
cast a single vote, and unless they could agree the State 
would lose its vote and have no voice in the decision. 1 

But, after all, the struggle for equal representation of 
the States determined the form of the Senate, and in 
such an important particular that it is often said that the 
Senate itself is the result of the compromise which grew 
out of this struggle. A knowledge of this compromise 
and of the struggle which led to it is essential to an under- 
standing of the way in which the Senate became what it is. 

The most hotly contested question in the Constitu- 
tional Convention was whether the States should have 
equal or proportional representation in the new The c 
Congress to be created. The essential point between 

with the national party, chiefly representing p^^o^ 
the large States, was that the States should Represen- 
vote in some equitable proportion. The Con- 
federate, or Small-State party, insisted on retaining the 
plan of the old Confederation, — one State, one vote. 
Read of Delaware said that if the rule of voting were 
changed it might become the duty of his State to retire. 
Paterson of New Jersey said : 

1 ' I consider the proposition for proportional representation 
as striking at the existence of the lesser States. I deny power 
to the Convention, from its nature, powers, and structure, to 

1 Of course, if a majority of the States should be required to carry a 
measure, a State whose vote was equally divided would count in the 
negative. 



204 The American Republic 

make any change in the rule of suffrage ; the idea of a national 
government as contradistinguished from a federal one, has 
not entered into the mind of the people. We must retain 
the federal [confederate] form, and a confederation supposes 
sovereignty in the members composing it, and sovereignty 
supposes equality. If we are to be considered as a nation, all 
State distinctions must be abolished, the whole must be 
thrown into hotchpot, and when an equal division is made 
then there may be fairly an equality of representation. Vir- 
ginia, Massachusetts, and Pennsylvania are the three large 
States; the other ten are small ones. I say that the small 
States will never agree to such disparity in suffrage as to allow 
Delaware one vote to Virginia's sixteen, which would be the 
proportion under the proposed plan. . . . 

" Mr. Wilson (of Pennsylvania) has hinted that the large 
States would find it necessary to confederate among them- 
selves if the others refused to concur. Let them unite, if they 
please, but let them remember that they have no authority to 
compel others to unite. New Jersey will never confederate on 
the plan before this Committee. She would be swallowed up. 
I would rather submit to a monarch, to a despot, than to 
such a fate. I shall not only oppose the plan here, but on my 
return home I shall do everything in my power to defeat it." 

Mr. Wilson of Pennsylvania answered Mr. Paterson. 
He said : 

1 ' I hope that some of the States, at least, will unite for their 
safety. Proportional representation is fundamental. As all 
authority is derived from the people, equal numbers of people 
ought to have an equal number of representatives, and differ- 
ent numbers of people different numbers of representatives. 
Mr. Paterson has admitted that people, not property, are the 
true measure of suffrage. Are not the citizens of Pennsyl- 
vania equal to those of New Jersey? Should it require 150 of 
the former to equal 50 of the latter? Representatives should 
hold the same proportion to each other as their respective con- 
stituents do. If the small States will not federate on this 



The Senate 205 

plan, Pennsylvania will not federate on any other. If New 
Jersey will not part with her sovereignty it is vain to talk of 
government." 1 

These extracts show the temper of the debate and its 
significance. Dr. Franklin had to remind the members 
that they were there to consult, not to contend, with each 
other ; and that declarations of fixed opinion, and of de- 
termined resolution never to change it, neither enlighten 
nor convince men. Light, not heat, was what was wanted, 
where harmony and union were extremely necessary to a 
common agreement. 

After this heated debate the Convention agreed by a 
vote of seven States against three a that the rule of suffrage 
in the first branch of the national legislature should not 
be according to the old rule, but "according to some 
equitable ratio." The three-fifths basis was soon agreed 
to as an "equitable ratio," using the proposed amendment 
to the Articles of Confederation, submitted with the 
revenue measure of April, 1783, as a precedent. 3 Then 
it was voted that the rule of voting in the Senate should 
be the same as in the House. This seemed to conserva- 
tive members to be pushing things too far; it appeared 

1 Madison's Journal. 

3 The vote of Maryland was divided. New Hampshire and Rhode 
Island were not represented in the Convention. 

3 By the Articles of Confederation the States were to contribute toward 
the expenses of the General Government in proportion to the value of their 
lands and improvements, assessed by the several States. This was never 
satisfactory, and was agreed to in Congress, in 1777, because there were no 
data at hand for determining a better plan. In April, 1783, it was pro- 
posed by Congress that the States permit Congress to collect a small uni- 
form revenue, under restrictions and regulations to be agreed to by the 
States. With this revenue proposition an amendment to the Articles was 
proposed which provided that payments should be made to the common 
treasury by the States " in proportion to the whole number of white and 
other free citizens and inhabitants of every age, sex, and condition, includ- 
ing those bound to servitude for a number of years and three fifths of all 
other persons, except Indians not taxed." This language is identical with 



206 The American Republic 

that the decision might result in the dissolution of the 
Convention. The members from the small States, oppos- 
ing a national government, "because they considered pro- 
portional representation the basis of it," 1 got together 
outside the Convention and concerted the "Paterson 
plan," which proposed to retain essentially the plan of 
the old Confederation. Dickinson said to Madison : 

"You see the consequences of pushing things too far. Some 
of the members from the small States wish for two branches in 
the General Legislature, and are friends to a good National 
Government; but we would sooner submit to a foreign power 
than to be deprived in both branches of the legislature of an 
equality of suffrage, and thereby be thrown under the domina- 
tion of the larger States. ' ' 3 

Following the introduction of the Paterson plan there 
was a long and impassioned debate. Mr. Ellsworth of 
Connecticut moved that the rule of suffrage in the second 
branch (Senate) be the same as that established by the 
Articles of Confederation. 

' ' We have decided, ' ' he said, ' ' against this rule in the first 
branch. For that I am not sorry. I hope it will become a 
basis of compromise. We are partly federal, partly national. 
Proportional representation is conformable to the national 
principle and would secure the large States against the small. 
An equality of voices is conformable to the federal principle 
and will secure the small States against the large. Let us find 
a middle ground of compromise. Massachusetts is the only 
Eastern State which will agree to the plan without equal 

that of the famous three-fifths compromise of the Constitution. All the 
States in Congress had agreed to this as a fair basis of apportioning taxes 
among them, and when, in 1787, the dispute was one over the basis of 
voting, since taxation and representation were supposed to go together this 
former agreement was taken as the basis of settlement. Such is the origin 
of the three-fifths compromise. 

1 Madison's Journal. s Ibid., June 15th. 



The Senate 207 

voices. An attempt to deprive the States of this dearest right 
will cut America in two. I can never admit that there is no 
danger of a combination of the large States. . . . We are 
running from one extreme to another. We are razing the 
foundations of the building when we need only repair the 
roof." 

Much more of the discussion follows, but enough of it 
has been given to show that in the Convention there were 
two clearly defined parties, or bodies, of opinion : 

1. One looked upon the States as geographical districts 
of people composing one political society. 

2. The other considered the States as so many distinct 
political societies. 

But, as Dr. Johnson of Connecticut pointed out, 

" the fact was that the States did exist as political societies, and 
a government was to be formed for them in their political ca- 
pacity, as well as for the individuals composing Tne 
them. The States must be considered in their Connecticut 
political capacity in some respects and as districts om P romise 
of people in others. The two ideas embraced on different 
sides instead of being opposed to each other ought to be com- 
bined ; that in one branch the people ought to be represented, 
in the other, the States." 

Here Johnson expresses exactly what was done in the 
formation of our Congress. 

Thus, the so-called Connecticut Compromise, particu- 
larly urged by Oliver Ellsworth, Roger Sherman, and 
Dr. Johnson from that State, resulted in the composition 
of the Senate as we know it to-day, by which each State 
has an equal number of votes in the Senate, in considera- 
tion of proportional representation being allowed in the 
House. 1 

It will be seen that the supposition of the framers was 

1 That money bills might originate in the House was also a part of this 
arrangement. 



208 The American Republic 

that there would be constant conflict of interests between 
the large and the small States. It has never been so in 
practice. Ten large States could control the House, but 
in the Senate they have but twenty votes out of ninety. 
The House has never been the organ of the large States 
nor the Senate of the small States. American politics 
have never turned on conflicts between these two sets of 
States. 1 Madison perceived and pointed out that the 
conflict would occur between the Northern States and 
the Southern, owing to differing interests, — especially on 
account of slavery. 2 But it was especially desired to 
make the Senate federal in character, to make it a body 
representing the States as separate and equal political 
communities. 

It is seen from studying the origin of the Senate that its 

federal nature was considered its dominant characteristic. 

It helped to preserve the federal scheme, that 

Federal in is, a government by States. Here the States 

Character, not were still to be equal. Such an arrangement, 

Democratic. . . . ^ . 

it is clear, is not at all democratic, not con- 
formable to republican government. Nevada, with a 
population of forty-two thousand, less than one fourth 
as many people as are in the city of Indianapolis, has as 
much power in passing the laws of the land, or prevent- 
ing their passage in the Senate, as New York with over 
seven million inhabitants. Delaware, hardly larger than 
two good-sized counties, has as much weight in the Senate 
as the great State of Illinois. Of course, a state of things 
in which forty thousand people are given as much political 
weight as seven million people is not conformable to 
democratic government. It is, as Mr. Bryce says, as if a 
single county in England should be given as much weight 
in the British Parliament as all of Scotland and the most 

1 Bryce, vol. i., p. 185. 

2 See also Hamilton in the New York Convention, Elliott's Debates, p. 
213. 



The Senate 209 

of Wales. But we must remember, in thinking of this 
situation, that our fathers did not wish to form a purely- 
democratic, consolidated government. They formed a 
Federal Government. They did not form a government 
for the people of the United State en masse ; they formed 
a government of the people in States. 

With the growth of the spirit of democracy, with the 
increased feeling that the majority voice of the whole 
people of America should be decisive in the can Equal 
making of the laws, a demand has arisen that Representa- 
this provision of the Constitution be changed ; senate be 
that the Senate be more democratic, more rep- Abandoned? 
resentative of the population, as was first contended by 
the Large-State party in the Convention of 1787. It 
has been suggested, for instance, that every State be al- 
lowed an additional Senator for every million of its 
population, each State with less than a million still being 
allowed two. 

This would, of course, require an amendment to the 
Constitution which would be very difficult, if not impos- 
sible, to obtain. It would violate the original agreement 
between the States when the Constitution was formed. 
For when the clause providing for amendments was in- 
serted in the Constitution it was specifically agreed that 
no State, by amendment, "shall be deprived of its equal 
suffrage in the Senate without its consent." 1 This, of 
course, is to be looked upon merely as a vain attempt 
to limit the future sovereignty of the nation. The Soverei 
The sovereignty of the nation cannot be lim- Power is 
ited, and if, in future, the people of the States n mte ' 
wish to make a new Constitution, omitting this provis- 
sion, or to amend the present Constitution by dropping 
it, they are competent to do so. a But this provision 

1 Constitution, Article V. 

9 In 1861, in order to conciliate the Southern States then bent on 
secession, a constitutional amendment was passed by two thirds of both 
M 



210 The American Republic 

carries great weight as the plighted faith of the past gen- 
eration to the small States, and it is not at all probable 
that it will ever be changed. Nor is it evident, despite 
its inconsistency with the democratic principle, that it 
ought to be changed. Equal representation of the States, 
as Mr. Bryce points out, has its advantages. It gives a 
distinctly different basis of representation from that of 
the House, a matter which has been difficult to obtain in 
upper houses in Europe; and the Senate, by means of 
it, forms a strong connecting link between the State 
governments and the National Government. The Senate 
is a part of the National Government, but its members 
derive their titles to their seats from the States as sepa- 
rate political communities. 1 

The Senate has three distinct classes of functions: 
I. Legislative; 2. Executive; 3. Judicial. 

1. The Legislative Function of the Senate is to act as a 
co-ordinate branch of the national legislature. Its con- 
sent is necessary to the passage of bills which 
Legislative become law. It has all the legislative power 
fhTsenatf that the House has. It may not originate a 
revenue bill, but it may amend such a bill and 
by this means be as influential as the House in determin- 
ing its final form. Allowing to the House the exclusive 
privilege of originating money bills was a concession to 

Houses and ratified by a few legislatures, guaranteeing that congressional 
power should never be used to interfere with slavery in the States. The 
constitutional limitation on congressional power over slavery was then 
generally recognized by all parties, but it was not specifically stated in the 
Constitution. The further guarantee of the proposed constitutional 
amendment was merely the promise of the sovereignty for that day that 
the power referred to would not be exercised. In the next generation the 
sovereign nation might have changed its mind and, by a two-thirds vote in 
Congress and the ratification of three fourths of the States, might have dis- 
regarded the limitation which it had imposed upon itself. An unamend- 
able part of a Constitution is inconsistent with sovereignty. The sovereign 
power can have its own way under the law. 
'Bryce, Commonwealth, vol. i., p. 109. 



The Senate 211 

the large States in return for the concession that the 
small States should have equal representation in the 
Senate. When it was subsequently changed so as to 
allow the Senate to amend revenue bills the concession 
of the small States came to nothing. It was thought the 
Senate represented the people as much as the House and 
should have equal powers. The Senate holds that a bill 
to repeal or reduce taxes is not a bill to raise revenue, 
and that it may originate such a bill, though by its passage 
new taxes may be made necessary. In 1894, the Wilson 
Tariff Bill that came from the House was changed by the 
addition of one hundred and forty-three amendments. 
Its friends in the House could then hardly recognize it, 
and President Cleveland, who favored the original bill, 
refused to sign it. 

2. The Executive Functions of the Senate are : 

(1) Participation in the appointing power; 

(2) Participation in the treaty-making power. 
Appointments and treaties made by the President must 

be confirmed in the Senate by a two-thirds vote. If two- 
thirds of the Senate do not vote to confirm, the appoint- 
ment, or the treaty, falls to the ground. 

In the performance of these functions the Senate goes 
into Executive Session, This is a secret session, a survival 
of the early practice ; for during the first five Executive 
years of the Senate's history, till February, Session of 
1794, all the sessions of the Senate were in 
secret. 1 It was thought the public must not know of, or 
be allowed in any way to interfere with, their proceed- 
ings. In an executive session the galleries are cleared, 
the doors are closed, and the obligation of secrecy is im- 
posed on every Senator, who becomes liable to expulsion 
if he disclose the confidential proceedings. Newspaper 
reporters, however, have a keen scent, and they often 

1 Foster on the Constitution, p. 492, vol. i. ; see Maclay's Secret Journal. 
The Constitutional Convention of 1787 held secret sessions. 



212 The American Republic 

find out and publish what occurs in secret session. The 
newspaper men will not give away the " leaky" Senators, 
and a Senator who will betray the secrets of the session will 
swear falsely upon investigation ; so it has been found im- 
possible to punish any one for betrayal. The difficulty 
of securing secrecy has arisen chiefly in cases of appoint- 
ments and not so much in cases of discussions on treaties. 
There is a general demand that the executive session 
be held in the open; but this movement has been 
blocked by some Senators. "The black sheep of the 
Senate love darkness because their works are evil ; other 
members of undoubted respectability defend the present 
system because they think it supports the power and 
dignity of their body." 1 

3. The Judicial Function of the Senate consists of its 
sitting as a court for the trial of impeachment cases 
brought up by the House. 

Originally, the Senate was looked upon chiefly as an 
executive body. Hamilton spoke of the executive au- 
The Senate thority as being divided between two branches, 
Originally t ^ e President and the Senate. 2 The Senate was 

Chiefly an 

Executive to be a small body of twenty-six members who 
Body. would sit and consult with the President on 

appointments and treaties and collateral phases of execu- 
tive business. In the earlier days of the Senate the 
Senators were looked upon largely as ambassadors from 
the States. The President and Cabinet ministers fre- 
quently consulted in person with the Senate. An effort 
was made to revive this practice under Madison, who 
declined an invitation from the Senate to consult with it 
on foreign affairs. Its legislative functions were not then 
relatively of so much importance as its executive func- 
tions. It did not become co-ordinate with the House in 
legislation until after 18 16, when its standing committees 
were created. 

1 Bryce, vol. i., p. 105. 2 See the Federalist on this topic, Nos. 61-65. 



The Senate 213 

This idea as to the chief function of the Senate came 
from colonial traditions. The upper houses of the co- 
lonial legislatures were Governors' Councils. They were 
largely for administrative purposes. These colonial 
Councils, or Senates, were to consult with the governors 
as to appointments and as to checks on the Assemblies 
and the advice to be sent to the home Government. 
Usually they were not popular bodies, but were depen- 
dent upon the Governor or the Crown, though in some 
Colonies they were elected by the lower House. These 
lower houses usually determined upon taxes, appropria- 
tions, salaries, and new laws, subject to the royal veto. 
So with the new United States Senate. It was to check 
and revise legislation, like the English House of Lords, 
or the colonial Council, but not to enter originally into 
the merits and policy of new laws. It was the presump- 
tion that public policy and legislation would be deter- 
mined in the House ; that a bill which passed the House 
would pass the Senate unless it were plainly unconstitu- 
tional or flagrantly opposed to the public interest. The 
Senate should intervene to stop a measure on the same 
principle that the early Presidents used the veto. 1 That 
the majority of the Senators did not like a measure was 
not to be taken as sufficient reason for their voting against 
it. The Senate was to restrain the House, but not to 
take its place in legislation. 2 

1 See p. 149. 

2 " At the origin of the Government, the Senate seemed to be regarded 
chiefly as an executive council. The President often visited the chamber 
and conferred personally with this body ; most of its business was trans- 
acted with closed doors, and it took comparatively little part in the legisla- 
tive debates. The rising and vigorous intellects of the country sought the 
arena of the House of Representatives as the appropriate theatre for the 
display of their powers. Mr. Madison observed, on one occasion, that, 
being a young man, and desiring to increase his reputation, he could not 
afford to enter the Senate ; and it will be remembered that, so late as 1812, 
the great debates which preceded the war and aroused the country to the 
assertion of its rights, took place in the other branch of Congress. To 



214 The American Republic 

Hamilton set forth the following purposes in the crea- 
tion of the Senate : 

i. To conciliate the spirit of independence in the States 
by equal representation. This was an end obtained but 
not a purpose put forward in the outset. 1 

2. To create a council qualified by size to advise and 
check the President in appointments and treaties. 

3. To restrain the House, guarding against passion and 
sudden changes in the people. 

4. To provide a body of stability, character, and con- 
tinuity in policy ; of men who are of larger experience, of 
longer terms, and more independent of popular election. 

5. To establish a court for impeachment. 

The Senators are elected by the legislatures of their 
respective States. Until 1866, each State legislature was 

Method of ^t ^ ree to e * ect * ts Senators in its own way. 
Electing "The times, places, and manner " of choosing 
Senators "shall be prescribed in each State by 
the legislature thereof; but the Congress may at any 
time by law make or alter such regulations except as to 
the places of choosing Senators." 2 In 1866, a Federal 
law was passed providing for the present method of 
electing Senators. It requires that each House of a State 
legislature shall first vote separately for the election of a 
Senator. If the choice of both houses does not fall on 
the same person, the houses shall then meet in joint ses- 
sion and shall proceed to vote viva voce, a majority of 

such an extent was the idea of seclusion carried that when this chamber 
[the room now occupied by the Supreme Court] was completed, no seats 
were prepared for the accommodation of the public. But now the Senate, 
besides its peculiar relations to the executive department, assumes its full 
share of duty as an equal branch of the legislature." — Vice-President 
Breckinridge to the Senate on their leaving the old chamber for the new, 
Jan. 4, 1859, Congressional Globe, 1858-59, Part I., p. 203, cited in Foster 
on the Constitution, vol. i., p. 491. See Furber's Precedents Relating to 
the Privileges of the Senate ; Lieber, Civil Liberty, chap. xiii. 

1 See p. 202. 2 Constitution, Art. I., Sec. 4, CI. 1 



The Senate 215 

each house being present, 1 and a majority of the whole 
legislature shall be required to elect. At least one vote 
daily shall be taken until election is made. 2 These pro- 
visions may lead to the breaking of a quorum and to the 
senatorial deadlock in the State legislature. If a party 
majority for a candidate be very small, the members of 
the opposing party may absent themselves from the joint 
meeting of the legislature. Unless the majority party 
can have every one of its members present the quorum 
will be broken and no election can legally be held. If a 
third party should hold a small balance of power in the 
legislature, the legislature in joint session might ballot 
every day for months without electing. 

Like the law of 1842, regulating the election of Repre- 
sentatives, this law grew out of a notable election con- 
troversy in the Senate. This case, like the one in the 
House, also came up from New Jersey. In the winter 
and spring of 1865, the legislature of that State seemed 
unable to elect a Senator. After many efforts at election 
it was found that no candidate could get "a majority of 
the votes of the members elected to both houses of the 
legislature," which was described in New Jersey as the 
rule of election. It was then decided, in convention of 
the two houses, to rescind this rule, and it was declared 
that "any candidate receiving a plurality of votes of the 
members present shall be declared duly elected." The 

1 See Atlantic Monthly for August, 1891, article by W. P. Garrison, 
9 Senator Fessenden of Maine objected to the viva voce vote as liable to 
put men under restraints from party discipline, which would lead them to 
act against their conscientious convictions of what was right and proper in 
the individual case, and which might bring a sort of compulsory pressure 
upon them that might be objectionable. Senator Trumbull of Illinois 
argued that constituents had a right to know how members voted ; there 
will be no chance to cheat by false or double ballots ; instructing constitu- 
ents had a right to know that their mandate was obeyed. In the discussion 
Senator Anthony advocated open voting, not only in the election of Sen- 
ators, but at the polls: "It prevents corruption, prevents deception, and 
cultivates a manly spirit everywhere. " 



216 The American Republic 

legislature consisted of a Senate with twenty-one mem- 
bers, and a House with sixty members. The resolution 
to elect by a plurality was carried in the joint conven- 
tion by a majority of one; of the House members thirty 
voted for it and thirty against it. It was therefore shown 
that the result could not have been carried with the 
two houses voting separately, in regular legislative form. 
Under this plurality rule John P. Stockton, the Demo- 
cratic candidate, received forty votes, John C. Ten Eyck, 
the Republican candidate, received thirty-seven votes, 
and four other candidates, one vote each. Thus there 
were forty-one votes, a majority, against Stockton, but 
as he had received a plurality, he was declared duly 
elected. Mr. Stockton took his seat on the first day of 
the next session of the Senate, and was regularly sworn 
in. Thirty-seven members of the New Jersey legislature 
sent to the Senate a protest against Mr. Stockton's being 
allowed to retain his seat in the Senate. They claimed 
that a Senator must be elected by the legislature, and 
a minority could not constitute the legislature. "The 
consequences which are possible," they urged, "from 
admitting the right to elect by a plurality vote furnish a 
conclusive argument against it. If two members vote for 
one person and every other member, by himself, for differ- 
ent individuals, the person having two votes would have 
a plurality. Can it be that in such a case he would be 
Senator? This, indeed, is an extreme case, but such cases 
test the . propriety of legal doctrine, and many equally 
unjust but less extreme cases may easily be offered." 1 
The Judiciary Committee of the Senate, consisting of five 
Republicans and two Democrats, reported, with only one 
dissenting Senator, 2 that "Mr. Stockton was duly elected 
and entitled to his seat." 3 

1 See Blaine's Twenty Years of Congress, vol. ii., pp. 154 et seq. 

2 Senator Clark of New Hampshire. 

3 A summary of Senator Fessenden's argument against this report is in- 
teresting from the constitutional point of view. The legislature, in the 



The Senate 217 

After much parliamentary wrangling the report was 
rejected, and by a very close vote Mr. Stockton was de- 
nied a seat in the Senate. The vote was largely the result 
of the fierce partisan spirit of the time. Mr. Blaine says : 

' ' In the decision itself, however, there has been general 
acquiescence, and it led to an important reform in the manner 
of choosing United States Senators. The well-known Act of 
July 26, 1866, regulating the time and manner of holding elec- 
tions for Senators in Congress, was the direct fruit of the Stock- 
ton controversy. The reluctance to interfere with the supposed 
or asserted rights of States had too long delayed this needful 
exercise of national power. It thus came to pass that many 
methods were developed in different States for choosing Sena- 
tors, — methods that widely differed in their essential character- 
istics. Hence there was variety, and even contrariety, where 
there should have been only unity and harmony. These 
divergent practices had been allowed to develop for seventy- 
seven years of the nation's life, when, admonished by the 
Stockton case of the latitudinary results to which loose methods 

election of a Senator, is merely the agent of the Constitution of the United 
States. It is therefore under the control of no other power. No provision 
of the constitution of New Jersey nor any law of a previous legislature 
directing the mode in which a Senator shall be elected would in any way 
bind the legislature which is to perform this act. The legislature is inde- 
pendent of everything except the Constitution of the United States. But 
although thus independent of State control, when it acts in the election of 
a Senator it must act as a legislature ; its act must be a legislative act. It 
is essential to a legislative act that it be performed by the two Houses act- 
ing separately. The legislature may vote to form a convention for the 
purpose of choosing a Senator, but if the ordinary and received law of 
electing in this convention is to be changed, the legislature and not the 
convention is the proper body to change it. And when the legislature 
created a body other than itself, though constituted of the same members, 
a convention to choose a Senator, that body must proceed in the choice of 
a Senator according to the universally received parliamentary and common 
law upon the subject of elections. The convention in New Jersey, unau- 
thorized by law, undertook to change this acknowledged parliamentary 
and common-law process and to elect in a different manner from that pre- 
scribed, namely, by a plurality vote. See Congressional Globe, vol. 70, p. 
1567, 1st Sess., 39th Cong., March 22, 1866. 



218 The American Republic 

might lead, Congress took jurisdiction of the whole subject. 
The exercise of this power was a natural result of the situation 
in which the nation was placed by the war. Previous to the 
civil conflict every power was withheld from the National gov- 
ernment which could by any possibility be exercised by the 
State government. Another theory and another practice were 
now to prevail ; for it had been demonstrated to the thoughtful 
statesmen who then controlled the Government that everything 
which may be done by either nation or State may be better 
and more securely done by the nation. The change of view 
was important and led to far-reaching consequences." * 

While this change in the legislative election of Senators 
is accepted as a suitable improvement over the former 
diverse methods, there has not, however, been acquies- 
cence in the original provision committing the election to 
the legislature. 

The present method has aroused great opposition and 

severe criticism. It has been called "one of the most 

tion to corru P tm g elements in our national political 

Electing system. ' ' " Every vote in the Senate is a bone 

united states of content i on between the national political 

Senators by * 

state parties, and these parties, therefore, through 

Legislatures, tne j r na tional organizations strive to control 
the various State legislators by whom the Senators are 
elected. This means that parties in the States are made 
. to coincide with parties in the nation ; that 

Influence of c ' 

National legislatures are to be chosen, not with refer- 

fhe^hoke ence to the needs and interests of the State, 
of state but with reference to the election of a United 

Legislatures. States Senator . that the peop le Q f the State 

cannot divide naturally on questions of local interest and 
importance, but are divided artificially by the greater or 
more dominant interests of national parties; that in vot- 
ing for State legislators we are led, not to vote for the 

1 Blaine, Tzventy Years of Congress, vol. ii., p. 160. 

2 W. P. Garrison, Atlantic Monthly, August, 1891. 



The Senate 219 

best and most competent men who would take the best 
care for the interests of the State, but to vote for the man 
of certain party allegiance, that he may vote for a Senator 
who will promote the party policy which we wish to see 
successful in the nation. This practice has had great and 
decisive influence in our history in promoting a tendency 
toward nationalization or consolidation. It centres the 
attention and interest of the citizen upon the affairs of 
the nation, and reduces his interest in the affairs TotheIn - u 
of his State, to the great detriment of good of Good Local 
local government. Therefore this method of Government - 
electing Senators, it is said with some truth and force, is 
chargeable with the deterioration of State legislatures, 
with the growth of machine rule, with the purchasability 
of Senatorships, and with the decline of the United States 
Senate itself. Not only are State legislators elected 
primarily for the purpose of electing United States Sena- 
tors and only secondarily to attend to the business of the 
State, but frequently the whole time of the legislature 
is taken up with prolonged and sometimes fruitless efforts 
to elect a Senator, and the business of the State is entirely 
neglected. 1 

The problems of State governments are by no means 

1 " Originally framed for the purpose of securing a ' select appointment,' 
it has, in its results, ended in being the means by which vested interests 
most easily obtain an influence in our Government. At this moment (1898) 
certain Senators are understood to represent sugar, or silver, or steel, or 
railroads, and this is due, as boldly expressed in a remark credited to Jay 
Gould, to the fact that it is cheaper to buy a legislature than it is to buy a 
people, and therefore this branch of our Government is at once the cheapest 
and easiest means by which special interests may secure representation." — 
Paul Leicester Ford's edition of the Federalist, p. 409, note. See also 
Haynes's Popular Election of United States Senators, 1893. See two articles 
for and against election of United States Senators by the people, New 
York Independent, May 31, 1900, by Senator W. A. Harris of Kansas, and 
Senator William E. Chandler of New Hampshire. Also ex-Senator George 
F. Edmunds in The Forum, vol. xviii., Senator John H. Mitchell, Forum, 
vol. xxi., and C. H. Fox in The Arena, May, 1902. 



220 The American Republic 

the same as the problems of the National government, 
and there is no reason why the two should be mixed as 
they now are in the election of Senators. The legislative 
candidate who represents the best man for the Senate 
may be altogether unfit for the office of legislator. The 
voter cannot vote intelligently when he is compelled to 
vote on two wholly different sets of questions at the 
same time, yet that is what every voter is compelled to do 
when he votes for State legislators to elect United States 
Senators. 

The result is that a strong demand has arisen for the 
election of Senators by a direct vote of the people. This 
would leave the State legislature free to attend to its own 
business. It is thought that this method would obviate 
the objections which we have recited, and that it would 
Would Pop- especially tend to prevent the securing of a 
uiar Election senatorial seat by bribery, as a millionaire cor- 

Tendto Re- t . , , t , 

strain Corrupt r upt candidate could not bribe the whole peo- 
Practices? p\ e f a State, while he might conveniently 
bribe a few members of a legislature, — enough to turn 
the scale in his favor. 

This change would necessitate a constitutional amend- 
ment. The difficulty of securing such an amendment 
will probably result in its never being brought about in 
that way. But the change may be brought about in 
effect — in fact, it is being brought about — by a change 
in custom and usage, that is, by the law of the unwritten 
constitution. In the famous senatorial contest in Illi- 
The People nois, in 1858, between Lincoln and Douglas, 
Direct 6 ™™ eacn P art y nominated its candidate in a State 
Election of convention. The people knew beforehand that 
c^ngTin^he if the Republicans carried the legislature Lin- 
Unwritten coin would be elected Senator, and if the Demo- 
Poetical crats carried the legislature Douglas would be 
Custom. elected Senator. So the popular election in 

November was like a political mandate from the people 



The Senate 221 

to the legislature to elect a certain man Senator. Fre- 
quently since 1858, political party conventions in various 
States have nominated their candidates for the Senate 
in this way, and the party majority in the legislature 
have subsequently merely ratified the nomination. In 
1898, Senator Hanna of Ohio was so nominated by 
the Ohio Republican State Convention. A few Republi- 
can members-elect of the legislature refused to support 
Senator Hanna, and they were regarded as recreant to 
their party obligations. If this custom should become 
general and fixed, it would place the virtual election of 
Senators in the party conventions, and the party majority 
in the legislature would be like the Electoral College, 
merely a ratifying body, bound to elect the one already 
determined upon. It is conceivable that this practice 
may easily grow up and be just as binding upon the mem- 
bers of the legislature as the choice of the party candidate 
for President is now binding upon the members of the 
Electoral College. This would be an approach toward 
popular election, provided only that the people of the 
dominant party were able to control the nominations 
through their party machinery by a good primary nomi- 
nating system ; otherwise, it might result in the virtual 
election of Senators by a clique of party bosses and man- 
agers of the machine. 

There is another way by which custom or independent 
State action may modify, or entirely change, the choice 
of United States Senators. The constitution 
of the State of Nebraska allows the voters in independent 
voting for members of the State legislature to Action of 

1 , ,, -, • r r the States. 

express by ballot their preference for some 
person for the office of United States Senator. The 
votes cast for such candidates shall be canvassed and re- 
turned in the same manner as for State officers." Under 
such a regulation, which could be provided by statute 
law in any State, any party of citizens could nominate a 



222 The American Republic 

suitable candidate for the Senate and have him voted for 
in all the counties. It is true the legislature would not be 
bound by law to elect him, though he should receive a 
majority of all the votes cast, yet custom and public ex- 
pectation and the political mandate which comes with a 
popular majority are very effective, and it would soon 
come to pass, as it has with the Electoral College, that 
the legislature would invariably ratify an election so or- 
dered by a popular vote. This is what is meant by the 
"actual forces in politics " and the "law of the unwritten 
constitution" prevailing over the law of the written 
Constitution. The legislature would continue to elect 
United States Senators only in name. 

In fact, the legislature's power of election is only 
nominal, as it is. The actual election is already made by 
The Actual ^ e P artv caucus of the legislature before the 
Election is by legislature meets. If the Republicans carry the 
CaucusXot majority of the members of a legislature in any 
by the State election, the majority of the Republican 

legislative caucus will elect the Senator. All 
the Republican members of the legislature must go solid 
for the caucus candidate or they may not be able to elect 
their man. The legislature then merely goes through the 
form of ratifying the nomination of the caucus. 

It is the present practice in most of the States that 
when a senatorial vacancy approaches, aspirants an- 
Methods of nounce themselves, or let it be known among 
Senatorial their friends that they are candidates for the 
place. The candidate then enters actively into 
the electoral campaign, making speeches throughout the 
State, and his friends in the various counties seek to 
secure the nomination and election of legislative candi- 
dates pledged, or favorable, to his interest. Sometimes, 
preceding an election, candidates for the legislature are 
expected to declare for which senatorial candidate they 
will, if elected, give their votes. And it is now coming 



The Senate 223 

to be the practice, unfortunately, that the party majority 
in the legislature feel disposed to limit their choice to the 
candidates who have previously announced themselves, 
and who have gone upon the stump in their own in- 
terests. This custom limits the discretion of the legis- 
lature without doing anything to promote a true and 
popular choice, for it frequently happens that the best 
men, men who would reflect great honor on their State in 
the Senate, and whom the masses of the party would de- 
light to honor, will not announce themselves as candi- 
dates and make a campaign for the place. 

The Senate has no rule for the closing of debate. To 
move the previous question for the purpose of shutting 
off debate and bringing the pending question ciotur in 
to a vote would be out of order in the Senate. 1 the Senate. 
This comes partly from what is called the dignity and 
courtesy of the Senate. The idea is that the Senate is 
too dignified a body, and desires to repose such con- 
fidence in its members and show them such deference 
and courtesy, and expects such deference and courtesy in 
return, that it is not to be presumed that any honorable 
Senator (and all Senators are honorable men) will be 
guilty of abusing his freedom and his privilege ; it is not 
to be supposed that a Senator would seek to address the 
Senate when he has nothing to communicate — that he 
would seek to talk merely to kill time. 

It has been found repeatedly that this senatorial cour- 
tesy, or this confidence in the honor and good faith of 
the Senators, is misplaced. They occasionally Filibustering 
resort to the privilege of unlimited debate for in tne senate, 
filibustering purposes, to wear out the majority and to 
stave off or defeat the pending measure. The Lodge Fed- 
eral Elections Bill was defeated in this way in 1890. Sen- 
ator George of Mississippi held the floor for two or three 
days, between repeated adjournments, to prevent the bill 

1 On cloture in the Senate, see Bryce, vol. i., p. 104. 



224 The American Republic 

from coming to a vote. And in 1893, on the bill to re- 
peal the compulsory silver-purchase clause of the Sher- 
man Act of 1890, when the majority were intent on 
remaining in session to force a vote, Senator Allen of 
Nebraska spoke consecutively for fourteen hours, — 
throughout the whole night. Eight or ten Senators with 
such lung power, who will relieve one another in such a 
contest, can usually force the majority to consent to ad- 
journment, or to take up some other business. When it 
comes, like this, to a contest of physical endurance, the 
small minority have a decided advantage. They need 
only keep three or four Senators on guard ; the others of 
like mind may absent themselves, sleep, and rest, and so 
prepare themselves for their service in turn, while their 
absence helps to break the quorum. But the majority 
members wishing to pass the measure must be present ; 
otherwise the business of the Senate is brought to a 
standstill, as the filibusters desire; for a filibustering 
minority speaker, when he sees that a quorum is not 
present, can rest from his speech until the majority are 
waked up and brought in. So the majority can only 
sleep on their arms, that is, on their desks ; and they are 
constantly subject to having their rest disturbed by a roll- 
call to which they must answer. 

It must be understood that these practices are very 
rare, only to be resorted to in extreme cases, when the mi- 
nority feel that their cause justifies their resort to this fili- 
bustering weapon. There are some things to be said in 
favor of leaving open this procedure as a defence for the 
rights of the minority. It is only on matters of deep and 
vital interest to their constituents that Senators would feel 
called upon to make such protest and combat against the 
majority. Usually the Senators have too much respect 
for their colleagues and for the dignity and courtesy of the 
Senate to abuse the privilege of the freedom of debate, 
and it cannot be said that the country has ever seriously 



The Senate 225 

suffered from the conduct of the minority in the exercise 
of their privilege of unlimited debate. The United States 
Senate still holds its place as one of the most worthy and 
honorable legislative bodies in the world. 1 

The Senate, however, has it in its power to adopt such 
rules as will curtail debate and force a vote. It is, how- 
ever, very reluctant to use this power, and it The Se nate 
will do so only when necessity requires. It Rules - 

might by rule require its chairman to put the motion after 
a limited time ; or set a day on which the main vote shall 
be taken, or it might again introduce into the proceedings 
the previous question, though this rule has long been 
obsolete. The Senate's rules, however, are designed 
rather for the purpose merely of preserving order, allow- 
ing freedom of discussion, and for the protection of the 
minority. The Senate proceeds on the principle that if 
hasty and ill-considered legislation is to be prevented the 
broadest freedom of debate must be allowed. 2 

The Courtesy of the Senate is a term applied to the sys- 
tem, or practice, of mutual support that the Senators give 
to one another, especially in the confirmation courtesy of 
of appointments. This courtesy arises from the Senate, 
the desire of the Senators, grown into a habit, to defer to 
and support one another where their personal interests 
are concerned. It helps to secure for a Senator a great 
degree of personal consideration and concession from his 
colleagues so that a Senator can have about what he 
pleases from his fellow-Senators. This courtesy operates 
to restrain Senators from applying the previous question 
to shut off debate by their colleagues. A Senator may 
have spoken twenty times upon a measure, and may have 
abused the Senate's indulgence, but if he seeks to speak 

1 On Senatorial Courtesy ; see also p. 157. 

3 See Foster on the Constitution, vol, i., pp. 493-494 ; Furber's Precedents 
Relating to the Privileges of the Senate ; the Senate's Proceedings in the 
summer of 1894. 
J 5 



226 The American Republic 

again and again, the Senate, out of "courtesy," will not 
refuse him the opportunity. Courtesy may even lead 
Senators to vote for a measure or a special bill, out of 
desire to please an associate. 

But the chief application of senatorial courtesy is found 
in the support Senators give to one another in order to 
control the Executive appointments. When the Consti- 
tution conferred upon the President the power to make 
appointments and on the Senate the power to confirm ap- 
pointments, it was clearly understood that the President 
should decide who should be appointed, and that the Senate 
should check him in the exercise of this power only when 
clearly unfit men were named for office. It was not in- 
tended that Senators should dictate appointments or even 
recommend men for places. It is now one of the under- 
standings of our politics, an illustration of our unwritten 
constitution, that the President's appointments to Cabi- 
net positions will be confirmed in the Senate without 
question. The President has a perfectly free hand in 
choosing his official family, and unless a palpably unfit 
nomination be made the Senate will confirm without 
question. 1 This, it was supposed, originally, would be 
the way with all presidential appointments. But the 
Senate soon came to the practice of rejecting nominees of 
the President on any ground it pleased, — because of party 
reasons, or because it disapproved of the party record of 
the nominee, or because a majority of Senators wished to 
spite the President. Then the Senators began to claim 
for themselves the right to dictate appointments or re- 
movals in their respective States. 

1 In 1869, President Grant nominated Mr. A. T. Stewart, the merchant 
prince of New York City, to be Secretary of the Treasury. Mr. Stewart as 
Secretary would have had, by the rulings and management of his depart-, 
ment, opportunity to affect his own interests as a heavy importer. This 
made him legally ineligible, and when attention was called to this in the 
Senate the President withdrew the nomination. 



The Senate 227 

" When I came into public life in 1869," says Senator Hoar, 
' ' the Senate claimed almost entire control of the Executive 
function of appointment to office. Every Senator with hardly 
an exception seemed to fancy that the national officers in his 
State were to be a band of political henchmen devoted to his 
personal fortunes. What was called the Courtesy of the Senate 
was depended upon to enable a Senator to dictate to the Ex- 
ecutive all appointments and removals in his territory." 1 

It thus came to pass that when the President came to 
appoint men to office, in New York and Ohio for in- 
stance, it was supposed that the Senators from these 
States would know best whether the appointments were 
fit to be made. If these Senators advised rejection, their 
colleagues, remembering that they might some time wish 
the return of the favor, deferred to their advice and re- 
jected the nominations. This deference of the Sena- 
tors for one another, by which they are led to confirm or 
reject appointments according to the advice of the Sena- 
tors from the States in which the appointments are made, 
is the most prominent manifestation of senatorial cour- 
tesy. The Senators, standing together in this way, can 
put pressure upon the President. They insist that before 
making a nomination to an office in any State the Presi- 
dent shall consult his party friends from that State, usu- 
ally the party Senators and Representatives, and be 
guided by their wishes. A Congressman will recommend 
to the President nominees for postmaster in the various 
cities and towns of his district, and the Senators will 
recommend men for more important appointments within 
the State. 2 Such an arrangement for the Senators bene- 
fits them all alike, because each obtains in this way an 

'Senator Hoar, Congressional Record, 53d Congress, vol. xxv., p. 137, 
April 8, 1893. Cited in Foster on the Constitution. 

2 If the State has no Senator of the President's party, the President will 
be apt to consult the party Representatives from that State, or the chair- 
man of the party State Committee, or other leading party men. 



228 The American Republic 

important share of Presidential patronage within his 
State. "You help me to control the party appointments 
in my State and I will help you to control the party ap- 
pointments in your State." This has led to serious 
abuses, until "courtesy" has become a reproach. Ex- 
ecutive appointments are practically made by Senators 
and Congressmen, and of course they use these offices to 
promote or secure their political fortunes. We now see 
what would have been to Hamilton and Madison and 
Washington an astounding spectacle, — the party Senators 
meeting at a State capital with the applicants for office, 
to make arrangements for the distribution of the offices. 
Who shall be Postmaster at Vincennes or Schenectady? 
or District Attorney for Southern Illinois? This purely 
Executive business the Senators now undertake to deter- 
mine. Their time and energy are largely given up to 
satisfying applicants for Executive appointments, and, 
through their placemen, to building up personal political 
machines. The question is, not whom the President will 
appoint, but to whom the Senators and Congressmen will 
assign the Federal offices within the State. The Presi- 
dent has virtually surrendered the Executive power of 
appointment to members of the national legislature. If 
the President refuses to be guided by senatorial dic- 
tation he runs the risk of having his nominations rejected 
by a combination of party Senators against him. Also, 
the Senators, if disappointed in their efforts to control the 
Federal patronage within their respective States, would 
oppose the President politically ; they would seek to em- 
barrass his administration and to defeat his renomination. 1 

1 " The Senate has never confirmed the nomination of a postmaster 
against the will of the Senator who lived where the office was situated. It 
insists that each of its members shall select the man who delivers to him 
his mail. On this principle President Cleveland conceded to Senator Hill 
the right to name the Postmaster at Albany, New York, and Sumner 
secured from Lincoln the appointment to the Boston Postoffice of the 
historian Palfrey." — Foster on the Constitution, vol. i., p. 493. 



The Senate 229 

This courtesy of the Senate could not have come 
into use, of course, except by the spoils system, — i. e., 
the use of the Federal offices for party and personal pur- 
poses. Under this use of the spoils through senatorial 
courtesy, the State is regarded as the rightful domain of 
the feudal baron, — the party Senator from that State, — 
and his political underlords are to be selected by him- 
self. These appointees must, therefore, be the Senator's 
men. They must work for him, either to secure the 
nomination of acceptable candidates for the State legis- 
lature, or, if the Senator be a candidate for President, to 
secure the appointment of favorable delegates to the Na- 
tional Convention. The Presidents have usually yielded 
to this senatorial usurpation, or have been disposed to 
accept it as a desirable and practicable means of strength- 
ening the party within the several States. To nominate 
a man to an important office within a State who is dis- 
tasteful to the party Senator from that State, or who is 
not attached to the Senator's political fortunes, is an 
offence to the Senator; and by senatorial courtesy the 
Senators have combined to defeat, and to protect them- 
selves against, such appointments. This was the cause 
of the famous quarrel, in 1881, between President Gar- 
field and Senator Conkling of New York. The President 
nominated as Collector of Customs in New York City, an 
officer having many hundred subordinates, a gentleman 
distasteful to Senator Conkling. This Customs Collector 
could not be depended on to work in the interest of the 
Conkling wing of the Republican party in that State. 
This appointment so offended Senator Conkling and his 
Republican colleague, Senator Piatt, that, as a protest, 
they resigned their seats in the Senate. They saw that 
senatorial courtesy would not prove strong enough to 
lead a majority of the Senate to stand by them for the 
rejection of the President's nomination. If these irritated 
Senators had been sustained by re-election to the Senate 



230 The American Republic 

by the New York Legislature they would have been in a 
position seriously to embarrass, if not to disrupt, the 
party administration in New York. In this case the Sen- 
ators were defeated and the President proved too strong 
for senatorial courtesy. 

In President Cleveland's second administration Senator 
Hill of New York succeeded, by force of senatorial cour- 
tesy, in defeating two of Mr. Cleveland's nominations for 
Associate Justiceships of the Supreme Court. The Sen- 
ator could not force his choice on the President, but he 
could for a time defeat the confirmation of the President's 
choice. Finally, the President nominated Senator White 
of Louisiana, and then senatorial courtesy worked in his 
favor ; for it is the uniform custom of the Senators cour- 
teously to confirm the appointment of one of their own 
number, and that, too, without the usual reference to the 
Judiciary Committee for investigation. 

The Dignity of the Senate relates to the honor and re- 
spect which the Senate assumes by its forms and behavior. 
The Dignity It seeks to cultivate those qualities, or aspects, 
of the Senate. f the Senate designed to promote the position 
and reverence due to the body. It involves exclusion 
and privilege. It requires that a Senator's honorable 
position shall be respected. Outsiders and spectators 
must not be familiar. They may not only not take part 
in the proceedings, but they may not indicate by any ap- 
plause or sign of dissent that they are aware that there 
are any proceedings. They may make no demonstration 
of any kind to influence or control the assembly. Other- 
wise the Senate might lose its personality, individuality, 
and dignity, and be reduced to a mass-meeting, or common 
political gathering. It is thought that in late years the 
Senate has declined in this respect, as it has frequently 
allowed crowded and excited audiences to applaud and 
hiss in its galleries ; and it has been asked whether we are 
approaching the time when the gallery loafer will be 



The Senate 231 

allowed to arise and correct the orator on the floor of the 
Senate, or interrupt him by interjections. 

When the Senate divides or votes on a question, the 
roll of the Senate is called alphabetically. The Senators 
may vote viva voce, or, in accordance with the Divisions in 
Constitution, one fifth of the Senators present Senate, 

may demand that the Yeas and Nays be entered upon 
the journal. In the British Parliament the members, in 
a division, pass into the lobby and are counted as they 
pass between two tellers. 

On the matter of impeachment the Constitu- 

,. .1 ,-. Provisions of 

tion provides that : the Co nstitu- 

(1) The Senate shall have the sole power to tion on im- 

1 peachment. 

try impeachments. 

When sitting for this purpose the Senators shall be on 
oath or affirmation. 

(2) The House has the sole power to impeach. 

(3) When the President is tried on impeachment the 
Chief Justice shall preside. 

(4) A two-thirds vote is necessary to conviction. 

(5) Judgment in case of conviction extends only to re- 
moval from office and disqualification to hold any office 
of honor, trust, or profit under the United States ; the 
party convicted shall be liable to indictment, trial, judg- 
ment, and punishment according to law. 

(6) The President, Vice-President, and all civil officers 
of the United States shall be removed from office on im- 
peachment for, and conviction of, treason, bribery, or 
other high crimes and misdemeanors. 

In the making of the Constitution there were objec- 
tions to conferring the power of trying impeachments 
upon the Senate : (i) It would unite legislative original Objec- 
and judicial functions. (2) It would unduly tionstoMak- 

J . 1 A ing the Senate 

accumulate power in the Senate and tend to t he court in 
establish an aristocracy. (3) The Senators impeachment, 
would judge too leniently officers for whose confirmation 



232 The American Republic 

they had voted. (4) Senators might be called upon to 
try one another for corrupt use of the treaty-making 
power. 1 

These objections were all answered in the Federalist, 
and experience has proven them untenable. 

It was suggested in the Convention of 1787 that the 
Supreme Court would be a better tribunal than the Sen- 
The Supreme ate f° r impeachment trials, especially for the 
court sug- trial of the President ; for, if the Senate were 
court o? C allowed to remove the President on impeach- 
impeachment. me nt preferred by the House, this would make 
the Executive too dependent on the legislative depart- 
ment, and would interfere with the President's power to 
check the legislature. It was answered that the judges 
would not form a competent court for presidential im- 
peachment, as they were dependent on the President for 
appointment. It was understood, when the Senate was 
given the power to try impeachments, that the Senators 
in impeach- were on their oaths to act, not from any po- 
ment Cases litical or party bias, but entirely in a judical 
toAcHn a capacity, — as impartial judges. That the Sen- 
Pureiy judicial ate may be depended upon to show a fair and 
judicial disposition in this respect was demon- 
strated in the celebrated impeachment trial of President 
Johnson. Eleven Republican Senators voted, not for 
conviction, as party pressure was urging them to do, but 
for acquittal, as they judged the law and the evidence 
demanded. 

Only the President, Vice-President, and "civil officers" 
of the United States can be impeached. Who are "civil 
who are officers of the United States" ? The word 
impeachable ?" c ' lv \\ " j s use d j n contradistinction to "mili- 
tary," consequently officers of the army and navy are 
exempt from impeachment. The reason for exempting 

1 On the subject of impeachment, consult Foster on the Constitution, and 
the Federalist, Nos. 65 and 66. 



The Senate 233 

military and naval officers is that they are subject to trial 
and punishment by* military law and usages. 1 

Senators and Representatives are not "civil officers of 
the United States" and are therefore not impeachable.* 
This was the decision in Blount's case in 1798. The 
only remedy for the misconduct of a member Senators and 
of either House of Congress during his term Rep" 8 ^*- 

° auves JNot 

of office is expulsion by his colleagues. In impeachable. 
Blount's case, while impeachment was pending, he 
was expelled from the Senate for the offence charged 
against him. After his expulsion Blount pleaded in his 
impeachment trial that the Senate had no jurisdiction. 
The Senate sustained this plea by a vote of fourteen to 
eleven, and the impeachment was dismissed. Wharton 
says: "In a legal point of view all that this case decides 
is that a Senator of the United States who has been 

1 Story on the Constitution, § 792, cited by Foster, p. 570. 

9 The Congressmen represent the people ; they receive their commissions 
directly from the people. They are the officers of the people of a State, 
and not of the United States. They may do official duty with reference to 
the United States, as some other State officers do now ; but they are still 
officers of the State. The Senators represent the sovereignty of the several 
States ; they represent the States, and as such are officers of the States and 
not of the United States. So that a Senator is not impeachable in that he 
is not an officer of the United States. A Congressman is not impeachable, 
in that he is not an officer of the United States, but an officer of the people 
of a State. It leaves it, then, that those cognizable "before this Court are 
only those who are the government officers of the United States ; who are 
officers alike for every State ; who receive their powers alike from every 
State, directly or indirectly ; who are commissioned by the people of all 
the States, through some person representing the people of all the States. 
So that the officers of the United States are those included in the Executive 
department of the Government, and every officer of that Executive depart- 
ment we conceive to be impeachable before this tribunal." — Manager G. 
A. Jenks in the Belknap case, p. 172 ; cited by Foster, p. 573. For the op- 
posing view Foster cites " the able argument of Bayard and Harper in 
Blount's case," Wharton's State Trials, pp. 266-272, 302-314. In the 
conventions that ratified the Constitution, C. C. Pinckney and Randolph 
spoke as if a Senator could be impeached. — Elliot's Debates, vol. iv., pp. 
263-265 ; vol. iii., pp. 202, 402. 



234 The American Republic 

expelled from his seat is not, after such expulsion, subject 
to impeachment." * 

" That the members of either House of Congress should be 
impeached by, or before, the other, or that an officer whose 
duties are legislative should be called in question elsewhere 
for official acts, could never be tolerated, and is repugnant to 
the nature of the office itself. ' ' 2 

Can an officer of the United States be impeached after 
he is out of office for acts done while he was in office? 
May an officer Ma ^ he esca P e impeachment by resigning? 
Escape im- The answer to these questions will depend 
Re^ign?ng t ? by u P on tne view taken of the purpose and scope 
May an ex- of impeachment. 

impeached ? One view holds that civil officers only are im- 
or a Private peachable for indictable offences only, and that 
while actually in office. 

The other view holds that impeachment may apply 
even to political offences which cannot be reached by the 
courts, and may even extend to offences against the peace 
and welfare of the State committed by private citizens. 8 
This would give a very wide extent to the power of im- 
peachment, and would put a very dangerous weapon in 
the hands of a dominant party as against a rising leader 
of the opposition whom the party in power deemed to be 

1 Wharton's State Trials, p. 317, cited by Foster. 

2 Hon. George F. Hoar, one of the House Managers in the Belknap case. 

3 " Let us suppose that a citizen, not in office, but possessed of extensive 
influence arising from popular acts, from wealth or connections, actuated 
by strong ambition and aspiring to the first place in the Government, should 
conspire with the disaffected of our own country, or with foreign intriguers, 
by illegal artifice, corruption, or force, to place himself in the presidential 
chair. . . . What punishment could be better calculated to secure the 
peace and safety of the State than disqualification ? . . . Such offences 
may be committed as well by persons out of office, and it may be as im- 
portant to prevent such persons from getting into office as to remove them 
when in." — Manager Bayard in Blount's case, p. 567 in Foster on the 
Constitution. 



The Senate 235 

dangerous. The best authorities are inclined to accept 
the view imposing the more restricted scope to this power. 

Whether an officer can escape impeachment by resign- 
ing was discussed at length in the Belknap case. 1 In 1876, 
it was found that the Secretary of War, Wil- 
liam W. Belknap, had been receiving from Escape im^ 
$6000 to $12,000 annually from the proceeds peachment by 
of an Indian post-tradership to which he had esi s mn e 
appointed the Indian agent. Belknap, as soon as this 
bribery was discovered, resigned, and the President ac- 
cepted his resignation. A few hours after his The Belknap 
resignation, five articles of impeachment were Case - 

preferred against him, each charging him, in substance, 
with the acceptance of bribes. Belknap's attorneys en- 
tered the plea that at the time of the impeachment he 
was not an officer of the United States, and therefore the 
Senate had no jurisdiction. This plea was overruled by 
a majority of the Senate, but the majority was less than 
two thirds, — thirty-seven to twenty-nine. On the final 
vote the same Senators who voted to sustain the plea 
voted "Not guilty," on the ground of lack of jurisdiction 
pleaded by Belknap's attorneys. So, while a majority of 
the Senate held that an officer could not escape impeach- 
ment by resigning, yet more than a third of the Senate 
refused on that ground to vote for conviction. The effect 
was that Belknap by resigning escaped the punishment of 
impeachment, though the majority of the Senate opposed 
this view. This precedent, however, may not be decisive 
in future cases. 2 

Opposed to the view that an ex-officer or a private citi- 
zen may be impeached, it is said that the ob- Argument as 
ject of impeachment is to remove a corrupt or to the scope of 
unworthy officer ; if the term has expired or he is Im P eachment - 
no longer in office that object is attained, and the reason 

1 Foster on the Constitution, p. 574 et seq. 

2 Forty-fourth Congress, first session. 



236 The American Republic 

for his impeachment no longer exists ; that the conjunction 
in the Constitution of removal and disqualification implies 
that removal precedes further punishment ; if the officer 
has resigned he cannot be removed, and therefore cannot 
be punished ; that if a private citizen can be impeached 
one day after his exit from office he may be at any time 
in his subsequent life; that this would put a terrible 
weapon in the hands of a dominant political party ; that 
the House of Representatives in the Belknap case had 
dropped proceedings when the accused had resigned 
pending investigation to determine whether the acts were 
impeachable. 

On the other hand, it is urged that if an officer, palpa- 
bly guilty of fraud and malfeasance, can escape trial and 
punishment by resigning, this seems to make the im- 
peachment clause nugatory and absurd ; that while there 
is room for argument as to whether an officer can be im- 
peached after he is out of office, it should be perfectly 
clear that to escape prosecution and penalty by a vol- 
untary resignation cannot be permitted; it is especially 
desirable that such an officer should be forever after 
disqualified from holding any office of profit or trust. 

The question has been raised whether the Senate has 
the power to suspend the accused from office during 
the trial. In President Johnson's trial, in 1868, Senator 
Sumner maintained that the Senate could suspend John- 
son from the presidential office pending the trial. Ac- 
cording to Sumner the reason the Constitution required 
the Chief Justice to preside in such a case was not be- 
cause the Vice-President was an interested party, but be- 
cause he was supposed to be exercising the President's 
functions. 

It has been asked whether a subsequent Congress could 
reverse an unjust conviction. This question is purely 
academic ; it has never been raised in practice, and it will 
probably never be necessary to raise it. 



The Senate 237 

There have been seven impeachment trials before the 
United States Senate. Only two of these have resulted 
in convictions. „ . . _ 

Historic Cases 

1. Blounfs Case. — On July 7, 1797, William of impeacn- 
Blount, Senator from Tennessee, was im- America* 
peached by vote of the House for high crimes 

and misdemeanors. On the following day he Blount ' s Case - 
was expelled from the Senate. Articles of impeachment 
were not preferred at the bar of the Senate until the session 
of 1798. Blount was charged with creating and setting on 
foot, within the jurisdiction and territory of the United 
States, a hostile military expedition against the territories 
and dominions of Spain in the Floridas and Louisiana, for 
the purpose of wresting the same from Spain for the bene- 
fit of Great Britain with which Spain was then at war ; he 
was charged, also, with inciting the Creek and Cherokee 
Indians, then inhabiting the territory of the United 
States, to commence hostilities against Spain in the 
Floridas and Louisiana, in violation of the peace and 
treaty existing between Spain and the United States ; he 
was further charged with conspiring to alienate and divert 
the confidence of the Indians from the agent and inter- 
preter appointed by the President. 

The impeachment was managed for the House by 
James A. Bayard and Robert G. Harper. Jared Inger- 
soll and A. J. Dallas, in defence of Blount, entered a plea 
that the Senate had no jurisdiction, since Blount was not 
then, nor at the time of the offences charged, a civil officer 
of the United States. This plea was sustained by the 
Senate and consequently Blount was acquitted. 1 

2. The Pickering Case. — On March 3, 1803, the House 
impeached John Pickering, a Federal District Judge for 
the District of New Hampshire. He was charged with 

1 Blount returned to Tennessee, was elected to the State Senate, was made 
Speaker of that body, and was about to be elected governor of the State at 
the time of his death. — Foster on the Constitution, vol. i., pp. 53°-53*« 



238 The American Republic 

making decisions contrary to law, and with drunkenness 
and profanity on the bench. Judge Pickering's son en- 
Pickering's tered a plea of insanity. The House managers 
Case. held that the insanity was the result of habitual 

drunkenness. He was convicted and removed by a party 
vote, the Federalists voting for Pickering, but the dis- 
qualification to hold office thereafter was not imposed. 

3. The Case of Chase. — Samuel Chase, one of the Jus- 
tices of the Supreme Court, was impeached before the 

Senate in 180;. Chase was a partisan judge 

Chase's Case 

who had the habit, then not uncommon in 
England and America, of indulging in political harangues 
in his jury charges. He had incensed the Jeffersonian 
Republicans in the House by his conduct in certain trials 
under the Sedition Law. He was accused of arbitrary 
conduct, of refusing a fair trial to the accused, of an- 
nouncing that his mind was already made up in cases to 
come before him, and of casting "highly indecent and 
extrajudicial " reflections upon the Government. Chase 
was found not guilty on most of these charges, though 
the case had the effect of leading the Democratic-Repub- 
lican forces to favor a change in the tenure of Federal 
judges. 

4. Peck's Case. — In 1830, Judge Peck, of the Federal 
District Court for Missouri, was tried on articles charging 

him with unduly punishing an attorney for 
contempt of court. The attorney had pub- 
lished a criticism of one of the Judge's decisions. Peck 
was acquitted. 

5. The Humphreys Case. — At the outbreak of the Civil 
War, Judge West H. Humphreys, Judge of the Federal 
Humphreys's District Court for Tennessee, though actively 
Case. engaged in the rebellion, did not resign. His 
position was vacated by impeachment. The charges 
against him were based on a secession speech made by 
him in Nashville, December 29, i860, and his acceptance 



The Senate 239 

of the office of Confederate Judge. He was convicted by 
unanimous vote of the Senate, June 26, 1862. 

6. The Impeachment of President Johnson, 1868. — The 
history of this case is well known. It is the only case of 
impeachment proceedings against a Presi- impeachment 
dent. The prosecution arose on account of of J° hn son. 
the violent controversies arising on Reconstruction, and 
was inspired largely by party motives. The charges 
against the President were based chiefly upon his alleged 
violations of the Tenure of Office Act. 1 Johnson escaped 
conviction by one vote. Seven Republican Senators 
voted against conviction. 

7. The Belknap Case, 1876. 2 TheBeiknap 
The Senator's term is for six years, and not Case - 

at the pleasure of the legislature of his State. Originally 
some thought this too long a term, that the Senators 
would forget their obligations to their State, „, 

° ' The Six Years' 

and it was urged that a State legislature should Term: sena- 
have the right to recall a Senator. 3 Sometimes * ors J a ! e N , ot 

° Bound by the 

a legislature passes a resolution of instructions instructions of 
directing its Senators how to vote on certain their states - 
measures, or a resolution of censure, or a resolution re- 
questing a Senator to resign as a misrepresentative of his 
State ; but a Senator is in no way bound to regard such 
resolutions. 

The belief in the right of a State to instruct its Sen- 
ators, and that the Senators should be bound by these 
instructions or resign, was formerly quite com- 
mon. Such was the prevalent idea in the early tion of 
part of the nineteenth century of the relation Senators, 
of a representative to his constituents. In 1808, John 
Quincy Adams resigned as Senator from Massachusetts 
because his vote on the Embargo in support of Jefferson's 

1 See p. 187. 

s The facts in the Belknap case are set forth on p. 235. 

3 See Elliot's Debates, vol. ii., p. 545. 



240 The American Republic 

administration was in opposition to the wishes of his con- 
stituents. In 1828, a Senator from Kentucky spoke 
against the "Tariff of Abominations," but felt himself 
bound to vote for it "as the organ of the State of Ken- 
tucky." ' In 1836, John Tyler resigned his place in the 
Senate because the Virginia legislature had instructed him 
to vote in favor of the Expunging Resolution, which he 
could not conscientiously do. 2 This theory of the bind- 
ing force of instructions regards the Senators as ambassa- 
dors (and the Representatives merely as delegates) who 
must look for instructions to the governments from 
which they are accredited. Early Senators often re- 
garded themselves in this light. Senator Tazewell of 
Virginia declined President Jackson's offer of a place in 
his Cabinet, and said: "Having been elected a Senator, I 
would as soon think of taking a place under George IV., 
if I were sent as a Minister to his Court, as I would to 
take a place in the Cabinet." This idea of the Senator's 
office is now abandoned. No one now expects a Senator 
to surrender his individual judgment and be moved from 
the course that he thinks wisest because of his State 
legislature's censure or instructions. In fact, the Sena- 
tors, owing to the length of their term, feel less moved by 
such instructions than members of the House do. 

On January 27, 1898, the Legislature of Kentucky asked 
Senator Lindsay to resign, as he was misrepresenting his 
party and State on the money question. The Senator, 
of course, refused. He said : 

" I do not exercise my senatorial duties subject to legislative 
supervision, nor hold my place at the legislative will. I repre- 
sent, not a party merely, but the people of Kentucky. My 
term of service is fixed by the Constitution of the United 
States. It cannot be abridged by the action of the Kentucky 

1 Benton's Thirty Years, vol. i., p. 95, cited by Foster on the Consti- 
tution. 2 Foster on the Constitution, vol. i., p. 496. 



The Senate 241 

legislature. Resolutions of legislatures can not relieve a Sen- 
ator of his responsibilities. His own judgment and con- 
science must guide his conduct. I am a Senator of the United 
States. Public questions affecting the interest of the whole 
country must be considered from the standpoint of broadest 
patriotism, not merely from consideration of local favor. If 
a Senator so acting is to be driven from his place by his State 
legislature, the dignity and independence of the Senate will 
soon be things of the past. ' ' 1 

Of course, public sentiment in a Senator's State will 
always be a powerful factor in determining his course, as 
it should be ; but the Senator must be free to resist this 
sentiment when he feels that the public are wrong and he 
is right. 8 

Usually the small States retain their Senators in con- 
secutive service longer than the large States. The famous 
Senators in our history have been those of long service, 
— Senators Benton of Missouri, Bayard of Delaware, 
Sumner and Webster of Massachusetts, Seward of New 
York, Morrill and Edmunds of Vermont, and Sherman 
of Ohio are illustrations in point. 8 

The following reasons have been given by 

53 & J Mr. Bryce on 

Mr. Bryce why the American Senate has the success of 
proven so successful and honorable a body : the a™ 6 "** 11 

1. It is representative. — Most upper houses 

in European legislatures are hereditary. Our Senate is 
elective and popular; that is, it can speak with the au- 
thority of the people and claim to represent the people, 
as well as the lower House. 

2. It is convenient in size. — A small body educates its 
members better than a large one. Each member has 
more to do, can more easily master the business of the 

1 Senate Record, Feb. 4, 1898. 

2 On instructions to Senators and Representatives see North American 

Review, vol. iv., p. 223 ; Palfrey, Niles Register, vol. xxviii., pp. 193, 200, 

216 ; Foster on the Constitution, vol. i., p. 495. 
16 



242 The American Republic 

body, and is given a livelier sense of the significance of 
his own action in bringing about collective action. A 
small body can act together better and more surely than 
a large one, and its members are apt to have more of the 
spirit of the body. Its members are more apt to stand 
together against the other house. For this reason the 
Senate can generally defeat the House in conference on 
matters on which they disagree. 

3 . The permanence of the Senate and the length of term. — 
The Senator learns his work and is relieved of biennial 
anxiety for re-election. 

It is the smallness and permanence of the Senate, more 
than anything else, that have contributed to the superior 
intellectual quality of its members. 

■ ' The true explanation of its capacity is to be found in the 
superior attraction which it has for the ablest and most ambi- 
tious men. A Senator has more power than a member of the 
House, more dignity, a longer term of service, a more inde- 
pendent position. Hence every Federal politician aims at a 
Senatorship, and looks on the place of Representative as a 
stepping-stone to what may fairly be called an upper House, 
because it is the House to which Representatives seek to 
mount." 1 

4. It is not subject to rapid fluctuations of opinion. — 
This is because of its permanence and the longer terms 
of the Senators. 

The Senate thus forms a stable bulwark against popular 
agitations. The majority of the Senators always have four 
years more to serve. Within that time public feeling 
may change. The Senate is less influenced than the 
House by a fleeting popular sentiment and appreciates 
more highly the importance of continuity in policy. 
"The Senate has therefore usually kept its head better 
than the House. It has expressed more adequately the 

1 Bryce, vol. i., p. 116. 



The Senate 243 

judgment as contrasted with the emotion of the nation. 
In this sense it does constitute a check and balance in the 
Federal Government." 

Of the three great functions which the Fathers of the 
Constitution meant it to perform, the first, that of secur- 
ing the rights of the smaller States, is no longer impor- 
tant ; while the second, that of advising or controlling the 
Executive in appointments as well as in treaties, has 
given rise to evils almost commensurate with its benefits. 
But the third duty is still discharged, for "the propensity 
of a single and numerous assembly to yield to the impulse 
of sudden and violent passions" is frequently, though not 
invariably, restrained. 1 

The Senate has been criticised as a "millionaire's club," 
because it contains so many men of very great wealth. 
Mr. Bryce says : 

" Some, an increasing number, are Senators because they 
are rich; a few are rich because they are Senators; while in 
the remaining cases the same talents which have won success 
in law or commerce have brought their possessor to the top in 
politics also. The great majority are or have been lawyers. 
Some regularly practise before the Supreme Court. Complaints 
are occasionally levelled against the aristocratic tendencies 
which wealth is supposed to have bred, and sarcastic references 
are made to the sumptuous residences which Senators have 
built on the new avenues at Washington. While admitting 
that there is more sympathy for the capitalist class among the 
rich men than there would be in a Senate of poor men, I must 
add that the Senate is far from being a class body like the 
upper Houses of England or Prussia or Spain or Denmark. 
It is substantially representative, by its composition as well as 
by its legal delegation, of all parts of American society ; it is 
far too dependent, and far too sensible that it is dependent, 
upon public opinion, to dream of legislating in the interest of 
the rich." 2 

1 Bryce, vol. i., p. 123. s Bryce, vol. i., pp. 1 19-120. 



244 The American Republic 

REFERENCES ON THE SENATE 

ir "The Senate and the House of Lords," J. C. Hopkins in American 
^ ^ Journal of Politics, vol. v., p. 461 ; y/ R. Ogden in the Nation, vol. 
lvii., p. 184. 

2. " The Senate and the Silver Question," Spectator, vol. lxxi., p. 506. 

3. "The Attack on the Senate," C. D. Warner, Century, vol. xxvi., 

P. 374. 

4. " The Decline of the Senate," M. M. Trumbull, Open Court,- vol. 

vii., p. 3895. 

5. " The Dignity of the Senate," Nation, vol. lxii., p. 230. 

6. " The Dilatory Senate and Trade Depression," L. Windmuller, 

Forum, vol. xvii., p. 326. 

7. " Freedom of Debate in the Senate," E. N. Dingley, American 

Journal of Politics, vol. iv., p. 49. 

8. "Has the Senate Decayed?" Gold win Smith, Saturday Review, 

vol. lxxxi., p. 467. 

9. " The Senate in the Light of History," Forum, vol. xvi., p. 272. 

10. "Is the Senate Unfairly Constituted?" S. E. Moffett, Political 

Science Quarterly, vol. x., p. 448. 

11. " Ought the Senate to be Abolished? " H. Von Holst, Monist, vol. 

v., p. 1. 

12. " Ought the Senate to be Reformed?" M. D. Conway, Monist, vol. 

v., p. 223. 

13. " The Senate as our House of Lords," J. F. Hume, American Journal 

of Politics, vol. iv., p. 348. 

14. " The Rights of the Senate," Soc. Econ., vol. v., p. 271. 

15. "Shall the Senate Rule the Republic?" H. Von Holst, Forum, 

vol. xvi., p. 263. 

16. " The Situation in the Senate" (Oct., 1893), Public Opinion, vol. xvi., 

p. 68. 

17. " The Struggle in the Senate, 1893," Wm. Stewart and H. C. 

Lodge, in North American Review, vol. clvii., p. 513 ; Nation, 
vol. lvii., p. 262. 

18. "The West in the Senate," W. H. Bryant, Nation, vol. lvii., p. 

268. 

19. "Choice of United States Senators," J. H. Flagg, New England 

Magazine, vol. xiv., p. 190. 

20. " Election of Senators by the People, " Arena, vol. x., p. 453 ; Forum, 

vol. xviii., p. 270; Johns Hopkins University Studies, vol. xi., p. 
547 ; Nation, vol. liv., p. 44 ; Forum, vol. xxi., p. 385. 

21. "Mode of Elections to the Senate," Public Opinion, vol. xiv., p. 

391.. 

22. " Senate : Its Origin, Personnel, and Organization," W. A. Peffer, 

North American Review, vol. clxvii., p. 48. 



The Senate 245 

23. " Senate : Its Privileges, Powers, and Functions, Its Rules and 

Methods of Doing Business," W. A. Peffer, North American Re- 
view, vol. clxvii., p. 176. 

24. " Decline of the Senate," Outlook, vol. lv., p. 1069. 

25. " Duty of the Minority in the Senate," American Magazine of Civics, 

vol. ix., p. 527. 
26^-" American Senate and the House of Lords," Spectator, vol. lxxviii., 

„ P- 431. 
27. M The Conduct of Business in Congress," Senator George F. Hoar, 
North American Review, vol. cxxviii. 



r* 



CHAPTER V 

THE HOUSE OF REPRESENTATIVES 

CONGRESS, or the National Legislature, as we have 
seen, consists of two Houses, the Senate and the 
House of Representatives. The Senate represents the 
States, the House represents the nation on the basis of 
population. This is the basic distinction between the two 
bodies. Hence, the House is called the popular branch 
of Congress. 1 

The members of the House, or the Representatives, 
are chosen every second year by the people of the several 
States. 

Those may vote for Representatives who are qualified 
by their State laws to vote for the most numerous branch 
of their State legislature. Thus, the qualifica- 

fe ' ^ Who may 

tions for voters who elect the members of the Vote for Re- 
National House are fixed by the laws of the presentatives ? 
respective States. The suffrage is more restricted in 
some States than in others, but generally the States pro- 
vide for manhood suffrage. However, they are left free 
to do as they please in the matter, except that no State, 
according to the Fifteenth Amendment, may deny the 

1 The members of the House are called Representatives, or Congress- 
men ; the members of the Senate are called Senators. The word " Con- 
gress" is sometimes applied merely to the lower House, as, "Mr. A. B. 
is a candidate for Congress." Though the Senate is a branch of Congress 
it is never designated by any other term than Senate, nor its members by 
any other term than Senators. But, constitutionally speaking, when it is 
said that Congress has certain powers, both Houses are included. 

246 



The House of Representatives 247 

right of suffrage on account of race, color, or previous 
condition of servitude. It is also provided, by the Four- 
teenth Amendment, that if the right to vote for President 
or Representatives is denied to any of the male inhab- 
itants of a State, being twenty-one years of age and citi- 
zens of the United States, except for rebellion or crime, 
the basis of representation in that State shall be reduced in 
the proportion to the number to whom suffrage is denied. 1 
In order to be a Representative a person is required : (i) 
to be twenty-five years old, (2) to have been seven years 
a citizen of the United States, and (3) to be, n ... .. 

v J ' ' Qualifications 

when elected, an inhabitant of that State in ofRepre- 
which he shall be chosen. It does not follow sentatives - 
that any one who can be elected possessing these three 
qualifications must be seated by the House. A criminal 
anarchist, a leper, an insane person, would, obviously, be 
ineligible to take the oath of membership. The House 
has repeatedly asserted its right to exclude members- 
elect for treason or other infamous crime. In 1862, Con- 
gress imposed a test oath which disqualified thousands 
of American citizens, and this law remained in force for 
twenty years. Congress may impose disqualifications for 
reasons that appeal to the common judgment of mankind. 
It was on this principle of construction that Congress ex- 
cluded Brigham H. Roberts, of Utah, as "a notorious, 
defiant, demoralizing, and audacious violator of State and 
Federal law relating to polygamy and its attendant 



1 See p. 351. 

2 See Report of House Committee, January 20, 1900, in the Roberts 
case, 56th Congress, 1st Session, Report 85, Part I. When the clerk is 
proceeding to organize a House by administering the oath of office to the 
members-elect, if the first person offering himself should be objected to as 
a person unfit to take the oath, the House will consider itself as already 
organized for the purpose of determining whether such person shall be 
allowed to be sworn in, and all who hold certificates of election may vote 
on the question. 



248 The American Republic 

Representatives and direct taxes are apportioned 
among the various States according to their respective 
Apportion- numbers. 1 This was in keeping with the idea 
ment of Re- that taxation and representation should go to- 
Size of the gether. Therefore, after every decennial cen- 
House. sus> Congress allots to each State so many 

members of the House. The State determines the dis- 
tricts within its own area for which the members shall be 
chosen. Formerly the States provided for popular elec- 
tions in their own way. Some elected their members'of 
Congress on a common ticket by the State at large, as we 
now elect the Presidential electors. On this plan, usu- 
ally, the party that carried the State got all the Congress- 
men from that State, while the other party got none, 
though the State may have been very close politically. 
But, in 1842, a national law required that the Represen- 
tatives should be elected by districts composed of con- 
tiguous territory. This law was the outcome of a notable 
TheOrganiza- contest in the House in 1839, which came up 

tionofthe from the State of New Jersey, whose Con- 
House. The , „ / f 
New jersey gressmen were then all elected on a common 

Case, 1839. ticket. The question that arose was whether 
the Speaker should be elected before the settlement of 
the contested election cases from New Jersey ; and, if so, 
whether the members whose seats were contested should 
have a right to participate in the election of the Speaker 
and the organization of the House. Every person hold- 
ing a certificate, whose name is on the Clerk's roll (where 
it belongs by operation of law), is entitled to participate 
in the organization of the House, whether sworn in or 
not. The five Whig members from New Jersey who held 
certificates of election had their seats contested by 
their five Democratic opponents, and the Clerk of the 
preceding House, a Democrat, whose place it was ta 

1 Note the exception just cited by the provision of the Fourteenth 
Amendment, p. 247. 



The House of Representatives 249 

make up the roll of the new House, refused to place the 
names of the five Whigs on the list of those entitled to 
vote for Speaker. Without the New Jersey members 
there were in the House 119 Democrats and 118 Whigs. 
The Clerk did not presume to put the names of the con- 
testing Democrats on the roll ; but the omission of the 
Whig names would enable the Democrats to elect their 
Speaker, organize the House, secure a majority of the 
Committee on Credentials (the Judiciary Committee), and 
decide the contested seats in their own favor. When, in 
calling the roll of those entitled to vote in the organiza- 
tion of the House, the Clerk came to the State of New 
Jersey, he stated that on account of the contest from that 
State it would be passed until the House could properly 
decide who were entitled to sit from that State. This 
created tumult and disorder. The Clerk refused to put 
motions to the House. After four days of wrangling, 
John Quincy Adams, addressing the members as "fellow- 
citizens," appealed to them to discharge their solemn 
duty of organizing by proceeding with the roll, and in so 
doing they should call the members from New Jersey 
who held the certificates of election. "But who will put 
the question? " some one asked. "I will put the question 
myself," replied the "Old Man Eloquent." The Clerk 
was cried down; Adams was elected to the chair, and, 
under his control, the House proceeded with debate. On 
December 14, 1839, tne House consented to vote for 
Speaker, refusing both delegations from New Jersey the 
right to participate in its organization. This was what 
the Democrats had contended for, but a group of Inde- 
pendent Democrats separated from the body of the party 
and joined the Whigs in electing Robert M. T. Hunter, 
an Independent, to the Speakership. The re- District Plan 
suit of this contest was the provision of the of R ^*^ 
district plan for electing the Representatives. It tatives. 

was seen that the district plan of election would generally 



250 The American Republic 

prevent a State from sending a solid delegation to Con- 
gress, and that it would be a more popular form of election. 

In the beginning, the Constitution provided that the 
Representatives should not exceed one for every thirty 
Ratio of Re - thousand of the population. It was thought 
resentatives unwise to have a large membership. The first 
to Population. a u t men t f Representatives (made by agree- 
ment in the Constitutional Convention before the census 
of 1790 was taken) provided for 65 members, one for 
about every 61,000 of the population. One member for 
every 30,000 of the population would have given a House 
of 130 members. With the growth of population it has 
been found necessary to increase the membership of the 
House, though it is still small in comparison with the 
lower houses of European legislatures. The present 
House of Representatives consists of 386 members, and 
this gives one for every 194,000 of the population. The 
English House of Commons consists of 670 members, 1 
the French Chamber of Deputies of 584, the German 
Reichstag of 397. 2 

Each State has, of course, at least one Representative, 
though its population may not be as much as the appor- 
tionment would require for the average congressional 
district. Nevada, with a population of 42,000 has one 
Congressman, while the average district should have 
181,000. Though each State is allotted its share of Rep- 
resentatives, the districts within the States may vary 
greatly in population, owing to "gerrymandering" acts 
of the State legislatures. 

If after a new Apportionment Act following a census a 
Congressmen- State has received an increase in the number 
at-Large. f }j- s Representatives and the State legisla- 
ture fails to redistrict the State before the next congres- 

1 By the Act for the Redistribution of Seats, 1885. 

2 This is one for every 131,000 of the population. The members of the 
Reichstag are elected by a wide suffrage for a term of five years. 



The House of Representatives 251 

sional election, the new members (or member) for that 
State are elected by the voters of the whole State on a 
general ticket and are called "Congressmen-at-Large." 

When a seat in the House becomes vacant by the 
death, resignation, or expulsion of a member, vacancies in 
the Governor of the State issues a writ for a the H <>use. 
new election. A member resigns by letter to the Gover- 
nor of his State. 

Each of the Territories has a delegate in Congress. 
These may sit and speak in the House and introduce bills 
and make motions, but they have no right to Territorial 
vote. They are not recognized by the Consti- Delegates, 
tution and are merely persons admitted to the privileges 
of the House, with the right of explaining and urging 
matters touching the interests of their Territories. 

Congress meets regularly the first Monday in every 
December. Although a Congressman's term and salary 
begin on the 4th of March next after his elec- Regular 

tion, the first regular session of the Congress Sessions, 
does not begin until the following December, — more 
than a year after the election of the Congress. This first, 
or long, session may last until July or August, or even 
until September. The second, or short, session begins 
in December and must, by the limitation of the Con- 
stitution, expire on the following 4th of March. The 
Congress elected in November, 1902, will not meet until 
December, 1903, unless the President calls it into "ex- 
traordinary session." "Extra sessions" are Extra 
avoided as much as possible; they are ex- Sessions, 
pensive and are politically hazardous, and the President 
is usually reluctant to subject his party to the risks which 
such a session may bring. It might be better to have the 
new Congress convene immediately after the Christmas 
holidays following its election. It would then come fresh 
from the people, prepared to carry out the policies on 
which it was chosen. Opposed to this, it has been urged 



252 The American Republic 

that the members will not have had time to consider suf- 
ficiently the public measures on which they will be called 
to vote and act. It many be answered that the people 
ought not to elect to Congress men who have not given 
worthy consideration to the issues and questions of the 
day. 

The House is organized by the election of its officers, 
after the Clerk of the preceding House has administered 
officers of the the oath of office to the members-elect. The 
House. officers of the House are a Sergeant-at-Arms, a 

Doorkeeper, a Postmaster, and a Chaplain. The func- 
tions of these officers are generally indicated by their 
respective names. 

The Clerk becomes politically important and interesting 
in the organization of a new House. It is his place to 
The cierk of preside while the new Speaker is being elected, 
the House. jj e mus t act as a fair moderator and give no ad- 
vantage to either side. In the celebrated contest over the 
Speakership in 1855-56, when the House was occupied for 
two months in the attempt to elect a Speaker, the Hon. 
John W. Forney, Clerk of the preceding House, performed 
a distinguished public service by the fair and judicial man- 
ner in which he presided. His position was a very im- 
portant and responsible one. The Clerk also makes up 
the roll of the new House, from the certified returns of 
the States. He must make up the roll according to the 
returns. In case of a contest he is not to decide the con- 
test, nor is he free to leave off from the preliminary roll 
the names of those whose certificates of election are con- 
tested. It is the function of the House to settle these 
contests, and all those who hold the regular certificates 
of election, whether rightfully or not, are allowed to par- 
ticipate in the organization of the House. 

The election of its officers is a mere form in the House. 
This election is prearranged and predetermined by a 
caucus of the majority of the House. In this party meet- 



The House of Representatives 253 

ing, held a few days before the time appointed for the 
organization of the House, and to which only House 
members of the majority party are admitted, a 
list of officers is agreed upon. After a majority caucus 

of the party caucus have agreed upon a list of Chooses the 
officers for the House, it is known that these will 
be elected ; for the rule of the caucus is, that those who 
participate in its proceedings must support its decisions 
in the open House. It is very seldom that party mem- 
bers refuse to go into a party caucus, and still more sel- 
dom that, having gone in, they refuse to support the 
ticket, or policy, agreed upon by the party majority. 
Thus the Speaker of the House is chosen, in the first in- 
stance, not by the House, but by the caucus of the 
dominant party in the House, and the choice is only 
formally ratified by the House as a means of getting the 
verdict of the caucus incorporated in the official record. 
Of course, if the majority of the House chose to do so, 
they could upset the decision of the caucus. 

The minority leader in the House is chosen in the same 
way. The minority party determines by a caucus on a 
choice for the party's complimentary vote for The Minority 
the Speakership. Whoever receives this vote Leader, 

is, by the usage and the traditions of the parties, the 
acknowledged minority leader. In a session of Congress 
next preceding a national campaign the minority leader 
utilizes the energy of his party in the House to "make 
politics, "—that is, to endeavor, with all the skill and tact 
he possesses, to put the majority in as unfavorable a light 
as possible before the country, and the minority in as 
favorable a light as possible. It is important for the party 
that this leader be an experienced Congressman and a 
well-trained parliamentarian. 

The members are seated, the Democrats upon the right 
of the Speaker, the Republicans upon his left. Individ- 
ual members are seated by lot. The names of the 



254 The American Republic 

members are placed in a box, and there follows a lottery 

for the choice of seats. A blindfolded page draws, and as 

each member's name comes out he chooses a 

Seat Drawing. /. 

seat not already taken. By courtesy, a few 
members of very long service in the House are allowed to 
choose their seats without drawing; or a young member 
whose name may be drawn among the first may give his 
chance to choose to an older leader in the House. It is 
an advantage to have a seat centrally located if one wishes 
to hear or take part in the proceedings. 

The salary of the Congressman, as of the Senator, is 
$5000 a year, in addition to mileage, — twenty cents a 
The salary of mile for travelling to and from Washington, — 
congressmen. an d § I2 ^ f or stationery. The English Member 
of Parliament serves without salary, and if a member of 
the working classes, or a poor man who cannot afford to 
serve without pay, should be elected to Parliament he is 
paid by the collections and the contributions of those 
who are interested in keeping him in Parliament. In 
America it is believed that public work should be paid 
for, and that all classes, rich and poor alike, should be 
given an equal chance to sit in Congress. America can- 
not depend upon a wealthy and leisured class to govern. 1 

A Congressman is elected for two years. Occasionally 
a man of distinction is continued in service for several 
The Tenure of consecutive terms, and the most distinguished 
the congress- congressional leaders are those who have sat for 
long terms by successive re-elections. But the 
local influences in the States, the ambitions and schemes 
of the political wire-pullers and workers, and the prac- 
tice of rotation in office that has been considerably culti- 
vated have tended to limit the average length of service 
to four or six years. 

" No habit," says Mr. Bryce, " could more effectually dis- 
1 Bryce, vol. xi., p. 194. 






The House of Representatives 255 

courage noble ambition or check the growth of a class of ac- 
complished statesmen. There are few walks of life in which 
experience counts for more than it does in par- 
liamentary politics. It is an education in itself, an congressional 
education in which the quick-witted western Ameri- Terms, and 
can would make rapid progress were he suffered 
to remain long enough at Washington. At present he is not 
suffered, for nearly one half of each successive House con- 
sists of new men, while the old members are too much harassed 
by the trouble of procuring their re-election to have time or 
motive for the serious study of political problems. ' ' 

The State of Maine has lately presented a good example 
of pre-eminence in congressional influence on account of 
the practice of her people in retaining for many consecu- 
tive terms her able Representatives. Mr. Reed, the 
Speaker, Mr. Dingley, Chairman of the Committee on 
Ways and Means, Mr. Boutelle, Chairman of the Com- 
mittee on Appropriations, and other Representatives from 
Maine have held places of commanding influence. 

By the provisions of the Constitution, Con- Powers of 
gress shall have power Congress. 

1. To lay and collect taxes, duties, imposts, and excises, to 
pay the debts and provide for the common defence and general 
welfare of the United States. 

2. To borrow money. 

3. To regulate commerce with foreign nations and among 
the several States and with the Indian tribes. 

4. To establish a uniform rule of naturalization, and uni- 
form laws on the subject of bankruptcy throughout the United 
States. 

5. To coin money, regulate the value thereof, and of foreign 
coins, and fix the standard of weights and measures. 

6. To provide for the punishment of counterfeiting. 

7. To establish post-offices and post roads. 

8. To promote the progress of science and useful arts, by 
laws of copyright and patents. 



256 The American Republic 

9. To constitute tribunals inferior to the Supreme Court. 

10. To define and punish piracies and felonies committed 
on the high seas, and offences against the law of nations. 

11. To declare war, grant letters of marque and reprisal, 
and make rules concerning captures on land and sea. 

12. To raise and support armies. But no appropriation of 
money for that use shall be for a longer term than two years. 

13. To provide and maintain a navy. 

14. To make rules for the regulation of the land and naval 
forces. 

15. To provide for calling forth the militia to execute the 
laws, suppress insurrections, and repel invasions. 

16. To provide for organizing, arming, and disciplining the 
militia, and for governing such part as may be employed in the 
service of the United States. 

17. To govern the District of Columbia, — the seat of gov- 
ernment of the United States. 

Powers Denied There are certain powers of government 
to Congress, specifically withheld from Congress : 

1. No bill of attainder or ex post facto law shall be passed. 

2. No capitation or other direct tax shall be laid, except in 
proportion to population. 

3. No tax, or duty, shall be laid on articles exported from 
any State. 

4. No preference shall be given by commercial regulations 
to the ports of one State over those of another; nor shall any 
inter-State duties be levied. 1 

While the Senate and the House are to be considered 
as co-ordinate branches of the National Legis- 

Exclusive . . . ., 

Rights and lature, each has certain exclusive privileges 
Powers of the from w hich the other is barred. The House 
may not participate with the Senate in confirm- 
ing appointments or approving treaties. On the other 
hand, the House has the exclusive right : 

*Art. I., Sec. 9. 



The House of Representatives 257 

1. To initiate revenue bills. 

2. To prefer articles of impeachment. 

3. To elect the President in case the Electoral College fails 
to elect. 

These exclusive powers are not very important and they 
do not add much to the prestige and power of the House. 
Since the Senate can amend revenue bills, it can as effec- 
tually determine the course of revenue legislation as if it 
could originate such bills. 1 

Impeachment is but a dormant power in the House. 
Conviction is so rare and difficult that this weapon of 
power will never be readily resorted to on the part of the 
House. 

In the eventual election of a President the House be- 
comes of special importance ; but in that case the House 
votes, not as single body, but as a collection of equal and 
co-ordinate delegations. 2 

There are four methods of division in the Method of 

House : Division. 

1. By viva voce vote, in which the Speaker determines 
which side has carried. "It appears that the ayes have 
it," he says. 

2. By a standing vote, the members being counted by 
tellers. 

3. By passing between tellers in front of the Speaker's 
desk. 

4. By the yea and nay vote, by which the votes of the 
members are put upon record. One fifth of the members 
may call for the yeas and nays, by express provision of 
the Constitution. 3 

The rules and procedure of the House are too com- 
plicated to permit of full explanation here. In- R U i es and 
deed, only experienced members of the House Procedure, 
ever come thoroughly to understand the application of 

1 See p. 211, chapter on the Senate. 2 Seep.n8. 3 Art, I., Sec. 4, CI. 3. 
17 



258 The American Republic 

the rules. The parliamentary manoeuvres and processes 
are confusing and are to be learned only by attendance 
or from a study of the record. Some of the more im- 
portant phases of the House rules and procedure and 
the methods of filibustering may be best explained in con- 
nection with an historic illustration. 

On March 25, 1892, the friends of the Bland Free Silver 
Bill, after three days' consideration of that measure be- 
T11 . .. . fore the House, wished to bring the measure 

Illustration of ' ° 

the House to a vote. The Committee on Rules had re- 
Proceedmgs. p 0rtec [ j n f avor f a special order for its consid- 
eration. A special order is an order of the House naming 
The special a special time for the consideration of a meas- 
Order. ure> This is the way an important measure is 

reached when there are a thousand insignificant ones 
ahead of it on the calendar. Any piece of business is ad- 
vanced in the House in two ways: It is made privileged 
business by giving its committee the right to report at 
any time 1 ; or a special order is passed in its favor set- 
ting a time for its consideration. The special order is 
used as a means of satisfying the political demand or 
party policy of the hour. Formerly it might be moved, 
at certain times, by any member of the House, or on a 
report of any committee. But recently the tendency has 
been to concentrate the power of the House in a few 
hands, in order to restrain the power of the minority and to 
Committee expedite or control the business of the House, 
on Rules. This has resulted in increasing the power of the 
Committee on Rules until this committee, so far as direct- 
ing and controlling the business of the House is con- 
cerned, is now easily the primate among the committees. 
This committee consists of five members of the House, 
three from the majority and two from the minority, and 
the Speaker is chairman of the committee. It became a 
select committee in 1858 and a standing committee in 

1 See p. 287 et seq. 



The House of Representatives 259 

1880. Its three majority members are old and experi- 
enced members of Congress and the responsible leaders of 
their party. The powers the committee now possesses 
enable it to select the business for the House to attend 
to ; all special orders must go to and come back from this 
committee ; it has the right to sit at any time during the 
sessions of the House ; it can report a special order on its 
own account which has not been previously committed to 
it, as a resolution from an individual or another commit- 
tee might be ; it is a privileged or licensed committee, — 
that is, its reports of new and special rules are in order at 
any time the committee may wish to bring one in ; while 
the Speaker, as a member of this committee, may decide 
that any filibustering against a proposed rule is out of 
order as interfering with the constitutional right of the 
House to adopt rules for its proceedings. While the 
special order is made by the vote of the House, it can 
now occur only on the initiative of the Committee on 
Rules, — a rule which practically makes this committee 
the arbiter of the business of the House, as in this way it 
may "steer," or manage, the House proceedings. If it 
sees a measure about to pass which it opposes it may 
block proceedings by a special order in favor of other 
business ; or, if in sympathy with filibustering, it may re- 
fuse to report a rule to prevent. Thus the Committee 
on Rules decides what the House shall do. 

The Speaker and the two majority members of this 
committee may accept or reject a bill, may permit or limit 
or refuse debate, may admit or refuse to admit an amend- 
ment. A member, having introduced a bill, having 
secured consideration of it and a favorable report by a 
committee, must get his bill from the calendar, where it is 
consigned when reported by the committee. To do this 
he must get the Speaker's consent, or that of the Com- 
mittee on Rules. This committee decides what the House 
shall consider. This practice under the rules of the 



260 The American Republic 

House practically bars the great body of the majority 
from any active participation in legislation. They are 
converted into "brute votes," to ratify what the few 
leaders determine upon. 

"Absolute power over the presentation, discussion, and 
amendment of measures has been given to the Speaker and 
the Committee on Rules; and this coterie of less than a half a 
dozen men entirely dominates all proceedings in the House of 
Representatives. It decides what shall be considered, for 
how long, and by whom, and the precise force of any measure 
is determined in advance." 1 

It is because of the excessive power of the Committee 
on Rules and of its chairman, the Speaker, that the 
House has "ceased to be a deliberative body." At 
times party members have become "insurgents," and 
have broken away from the control of these leaders who 
direct the business of the House. This power has been 
given to the leaders by the vote of the majority and they 
can undo it by changing their rules. The defence for thus 
destroying their own importance is that, without rules 
that vest power with some directing committee, so large 
a body as the House would be unable to do business. 
With the open rules of the Senate the minority could 
prevent any proposal of the majority. A reform lately 
proposed is that the Committee on Rules should be en- 
larged and that it should be selected, not by the Speaker, 
but by the party caucus. It would then be more of a 
representative committee, and would respond to the judg- 
ment of the majority of the House, and "if the majority 
is not fit to determine its own policies, popular govern- 
ment is a failure. ' ' 2 

1 Quoted from a San Francisco paper by Bell of Colorado, House, 
March 31, 1902. 

2 Representative Crumpacker of Indiana, Indianapolis News interview 
April 21, 1902. See "The Rules of the House," by Hon. John M. 



The House of Representatives 261 

To resume our illustration: the Committee on Rules 
had set aside three days for the consideration of the Silver 
Bill, and the bill was debated until five o'clock of the last 
day. Among the hostile efforts designed to defeat the 
bill, Mr. Burrows of Michigan moved to lay the bill on 
the table, a motion which, if carried, would have disposed 
of the bill finally. To lay upon the table without nam- 
ing a day for further consideration is to postpone indefi- 
nitely, — that is, to kill. The vote upon Mr. Burrows's 
motion stood 148 to 147. Thereupon, Speaker Crisp 
voted as a Representative from the State of Georgia, and 
the vote became a tie, 148 to 148. The The Speaker's 
Speaker has the right of a Representative and Vote - 

may vote at any time, but, having voted once, he may 
not, of course, vote again. He may break a tie and carry 
a motion, or make a tie and defeat a motion. Conse- 
quently, the Silver Bill was not laid on the table, since it 
requires a majority to carry a motion. The friends of the 
bill were striving to keep it in its place as the first matter 
of business before the House, and they now wished to 
push it to a vote. To prevent a vote the opponents of 
the bill began to filibuster. Filibuster ins; is the 

7 . ,. . Filibustering. 

process of resorting to parliamentary tactics 
for the purpose of delaying, or obstructing, or prevent- 
ing, the business before the House. The process consists 
in moving to adjourn, moving to "adjourn till eight 
o'clock," moving to "take a recess," or that "when the 
House adjourns it adjourn" to a certain hour, calling for 
the yeas and nays, and making other dilatory motions 
which are in order by the rules of the House. A dilatory 
motion identical with one just disposed of may not be 

Thurston, in New York Independent, April 24, 1902 ; speech of Hon. F. 
W. Cushman of Washington, in the House, April 17, 1902 ; remarks of 
Hon. J. C. Bell of Colorado, in the House, March 31, 1902 ; speech of 
Hon. J. M. Robinson of Indiana, in the House, Dec. 13, 1899, and 
March 3, 1898, and in the Washington Post, May 5, 1902. 



262 The American Republic 

made until some business has intervened ; but it will be 
seen that the motions need be only slightly varied, while 
a speech (and windy obstructionists are fertile in speeches) 
has been interpreted as intervening business. It is well 
understood that motions of this kind can be made with- 
out limit, and no bill can possibly pass as long as these 
motions are kept up. If the minority be large enough 
these filibustering tactics will always succeed in forcing 
adjournment or a compromise. 

Filibustering tactics against the Bland Bill were kept 
up until a late hour on the last day for the consideration 
of the bill, with the purpose of wearying the friends of 
the measure into a willingness to adjourn. The friends 
of the bill were determined to continue in session in 
order to prevent a lapse of the legislative day. A 
The Legisia- legislative day lasts as long as the House re- 
tive Day. mains in session, though it may be a week by 
the calendar; and thus the contest becomes one of physi- 
cal endurance. To adjourn without voting on the bill 
would have been disastrous to it ; because, in that case, 
since only three days had been assigned for its considera- 
tion, it would have fallen back to its place on the calen- 
dar. To get at a bill which is on the calendar 

The Calendar __ & . . ... 

"the Ceme- the House has either (i) to await the bill s turn 
tery of Legis- j n j ts orc Jer, or (2) to advance it on the calendar 

lative Hopes." . , , . , . f . 

by a special order, — to set a special time for its 
consideration. There was no hope of reaching the Silver 
Bill during that Congress by awaiting its order on the cal- 
endar. The calendar is like a great graveyard of ten 
thousand buried bills. Generally, only the favored ones 
are called out by the special order. To advance the 
Silver Bill again by special order would require its friends 
(as they had done before) to secure a majority of the 
Democratic members of the House to a petition asking 
the Committee on Rules to report the order in its favor. 
Pressing business may have been mapped out which made 



The House of Representatives 263 

this impossible. Or hostile members who wished to make 
a record of favoring the bill, but who were really opposing 
it, would have refused to co-operate in this private party 
effort. The speech and vote of these members were on 
record in favor of the measure and these could be shown 
to their constituents, though their private influence, 
secured through pressure, patronage, or bribery, was 
against the measure. At this juncture in the conflict 
over the Silver Bill the Committee on Rules, or its ma- 
jority, consisting of the Speaker and his two party col- 
leagues on the committee, could have secured the passage 
of the bill by reporting a cloture rule to prevent 

1 ri-i . r^ r i . Cloture. 

further filibustering. One of the important 
powers of the Committee on Rules is that it may, when 
it wishes, shut off filibustering by reporting a new rule 
designed to bring the House to a vote. In 1890, a rule 
empowered the Speaker to refuse to put any motion 
which he considered dilatory. This promotes "one-man 
power," and the Speaker vested with such power might 
disregard the rights of the minority. While this rule is 
not a standing one it may be made a special one at any 
time and is apt to be introduced to rebuke and defeat 
palpable and offensive filibustering tactics. This is the 
process of cloture, a process by which the Speaker may 
defeat filibustering and suppress the minority. It is the 
process by which the House, setting aside parliamentary 
usage and delays, concentrates its authority in its presid- 
ing officer and instructs him to bring it to a decision. 
However, no member who wishes to discuss a measure in 
a bona fide and serious way is ever apt to be estopped by 
the forced application of the previous question under a 
special rule for cloture. A cloture rule is a rule or resolu- 
tion which provides that after a certain limited time for 
debate all motions and business are out of order except 
the previous question and the vote on the pending bill, 
and the Speaker is instructed to recognize no member for 



264 The American Republic 

the purpose of making a dilatory motion, and to declare 
all such motions out of order. 

The previous question is the most common form of 
cloture. It is the chief parliamentary remedy against 
The Previous filibustering. If members are indulging in ob- 
Question. structive debate merely to stave off or prevent 
business the previous question may be moved, and if this 
carries, the House must then vote upon the question 
before it. No debate is allowed on the motion for the 
previous question. The motion for the previous ques- 
tion is a motion for the closure of debate. It cannot 
be applied in the Committee of the Whole, but it may 
be decided there to adopt it as a rule for application 
in the House. On the occasion of the struggle over the 
Silver Bill to which we have referred the Committee on 
Rules refused to report a cloture rule and the Silver 
Bill was laid on the shelf by the filibustering tactics of its 
opponents. 

When a bill or a proposition for a law is offered for en- 
actment it is, if a public bill, handed to the Speaker, and 
How a Bill is if a private one, to the Clerk, and by him it is 
Passed. sen £ to one f ±he fifty or more committees 

which are appointed at the beginning of the Congress. 
In committee, from eleven to fifteen men examine it, 
and, if necessary, give hearings to members and citizens 
who wish to present arguments or facts to guide the com- 
mittee to its conclusions. The committee then reports, 
and if the bill requires money from the Treasury, or 
property of the United States, its name goes on a list 
called a calendar of the "Committee of the Whole House 
on the State of the Union." If the bill does not carry 
money its name goes on the House calendar. 

Every morning, when the House does not otherwise 
The Morning order, there is a period of time called the morn- 
Hour. i n g j lour — w hi cn mav De an hour or a day — 

when bills which do not carry money can be called up 



The House of Representatives 265 

and passed. It is harder to get at money bills and harder 
to pass them, especially if there be opposition. 

" In the Committee of the Whole House on the State of the 
Union, there is general debate, so hard to close, and five 
minutes' debate, so provocative of other five minutes. The 
Committee of the Whole is a very asylum of oratory, economy, 
and patriotism. There the workingman gets exuberant justice 
done him, especially during election year. There tyranny re- 
ceives its most dreadful buffetings, and trusts and monopolies 
are properly and accurately characterized." * 

Long sessions — continuous night sessions — are often 
held in order to force agreement from the House. 

' ' What men will not yield to conviction they will yield to 
weariness. After sitting up all night principles do not seem so 
utterly supreme. Constitutional views of the patriot will give 
way under prolonged weariness of the flesh. What Congress 
would not vote in the evening it may be ready to vote by five 
the next morning, if kept in session. If you must have agree- 
ment it is just as necessary to lock up Congress as it is to lock 
up a jury. Men are such queer compounds that nothing but 
physical discomfort will reveal to set obstinacy that half the 
questions of principles are questions of temper and half the 
other half mere pride of opinion." 1 

In the English Commons, bills are generally carried 
through by the Government, and the party majority 
are brought into line for the support of all A t( Govern _ 
Government bills. A Government bill in Eng- ment bui " in 
land is one brought in by the responsible Min- 
istry of the day ; that is, a bill originated and supported 
by the Cabinet, or Government. Having behind it 
the responsibility of the Ministry it will have the support 

1 Hon. Thomas B. Reed, in The Youth's Companion, Dec. 4, 1890. 



266 The American Republic 

of the majority which keeps the Ministry in office. All 
important bills involving political issues are Government 
bills, and as the Ministry disposes of half the working 
time of the House it has facilities for pushing its bills. 
A Government bill is carefully weighed and discussed by 
the Cabinet before it is introduced. The Government 
must stand or fall with the bill; if it is rejected they re- 
sign. Such a bill is exposed to the hostile criticism of 
the opposition, who seek to discredit and defeat it. A 
private member — that is, a member of the House but not 
a member of the Ministry — may introduce a bill on his 
own account and urge its passage. But the Ministry is 
held responsible for what the House does. If they allow 
a private member to pass a bad bill, or prevent his pass- 
ing a good one, they are blamed. Consequently the 
Ministry will be called upon to state through one of its 
members whether the Government opposes or favors the 
bill, or is neutral. The attitude of the Ministry may de- 
termine the fate of the bill. 

There are no Government bills in Congress. All mem- 
bers are private members. The nearest approach to a 
a «« Caucus Government bill is one presented by some 
Bm "in leader of the majority at the behest of his 
party caucus, or as the spokesman of the Ad- 
ministration. Sometimes members of Congress, by 
interviews with the President or by means of official in- 
fluence, are brought around to favor a bill that they have 
previously opposed. 

Breaking a quorum by refusing to vote was formerly 
one of the favorite and most effective means of filibustering 
The st™ le * n ^ e House. In order to prevent this Speaker 
over the Reed, in 1890, announced a notable decision 

touching the quorum, that gave rise to one of 
the most heated parliamentary conflicts in the history of 
Congress. 

The Constitution says: "A majority of each house 



The House of Representatives 267 

shall constitute a quorum to do business ; but a smaller 
number may adjourn from day to day and may be author- 
ized to compel the attendance of absent mem- A Constitu- 
bers, in such manner and under such penalties tionalQuorum - 
as each house may provide." 

For one hundred years, from 1789 to 1890, it was the 
custom and rule of the House to determine a quorum — 
that is, to ascertain whether there were enough „ Raisin the 
members present to do business — by roll-call. Question of a 
Any member, after the House had voted upon Quorum. » 
a bill, might raise the question of a quorum, and if from 
the Clerk's record it should appear that only a minority 
of the House had answered to the call, or had voted on 
the measure, the Speaker was bound to announce that no 
quorum was present and that the measure had failed from 
lack of a quorum. It is true that many times the House 
proceeds in the transaction of business without a quorum. 
Many measures, and very important measures too, are 
often passed while only a handful of members are present 
in the House. But this is because no one objects to what 
is being done, and, according to a legislative fiction, the 
House is supposed not to know that there is no quorum 
present. No one has called the attention of the House 
to that fact. But any member may do so at any time by 
saying, for instance, "Mr. Speaker, I raise the question 
of a quorum. ' ' He may do this for the purpose of calling 
the attention of the House and the country to the merits 
of the proposed legislation ; for then, if the member per- 
sists in his objection and insists upon the presence of the 
quorum, a majority of the members must be present, and 
their presence is determined, not by their being seen, 
but by their answering to a roll-call. Under the old rule, 
if a quorum is demanded, a majority of the whole House 
must vote on a pending measure before it can be passed. 
In this way a conscientious and vigilant member, ' ' a watch- 
dog of the treasury," may prevent many bad jobs from 



268 The American Republic 

going through while a great majority of the members are 
absent or indifferent. But a member may also thus ob- 
struct innocent and necessary legislation and make him- 
self merely annoying to his fellow members. And it 
will be seen that by this rule of determining the quorum 
(not by the actual presence of members, but by their 
voting) a minority party, by persistently refusing to 
vote, may prevent the transaction of business which they 
do not like. For when the parties are closely divided 
in the House it is next to impossible for the majority 
party to have a quorum on hands. All their members 

cannot be there at once; some will be indif- 
Quoruma ferent to the public, or the party, business; 
Means of some may be at home attending to their 

"political fences"; some will be sick, or 
by a sick-bed at home, and some will be otherwise un- 
avoidably detained. The old rule was designed to enable 
the minority party to compel the majority party to be on 
hand to vote measures through. If the party majority are 
to constitute the House to do business a large minority 
party may at any time "break the quorum " by refusing 
to vote, and thus block the party measures of the ma- 
jority. Although it might be perfectly clear that a 
quorum was present the House could take notice only of 
those voting, and nothing could be done but to proceed 
with business to which the minority party will give their 
consent. 

Speaker Reed's decision in 1890 consisted in directing 
the Clerk to add to the list of those who had answered 
the roll-call the names of members as "present but not 
voting " whom he saw in the House. Thus the Speaker 
made a quorum by adding enough of those whom he saw 
to those whom the Clerk heard. A majority present doing 
business by voting was the definition of a quorum by the 
old rule. A majority present shall constitute a quorum 
to do business was the new interpretation, and the pres- 



The House of Representatives 269 

ence of the majority may be determined by the counting 
of the Speaker. 

In defence of the old rule it may be said that a measure 
should have a majority of the House in its favor; if the 
majority wishes to pass a measure they should D . ^ 

be there to pass it ; that it is the right and duty ow Rule of 
of the minority to require for the passage of a the Quorum - 
law to which they are opposed that a clear majority of 
the whole House should be registered in its favor. An 
unscrupulous Speaker may see only one side and may 
name as present for partisan purposes members who are 
not present. 

But, on the other hand, if members may not be al- 
lowed to break the quorum by their absence it is hardly 
reasonable to expect that they should be allowed to do so 
by their silence after they have been compelled to come 
in. The House is perfectly free to adopt whatever 
constitutional rule it pleases for the determination of a 
quorum, and if it had adopted the rule of 1890 in the be- 
ginning, it is not probable that any objection would have 
been made. 

The Supreme Court, in a case brought to test the con- 
stitutionality of a law passed under this ruling, held that 
it is within the competency of the legislature The supreme 
to enact any rule not forbidden by the Consti- Court Sustains 

^ . .... Legislation 

tution, or that is not against natural justice, in under the 
order to secure the presence of a quorum ; and New Rule- 
"when the quorum is present it is there for the purpose 
of doing business." The Court held, in substance, that 
a man's legal presence was his bodily presence, not the 
presence of his judgment as manifested by his voice; 
and that if a man is present in the body he is properly 
supposed to have his voice and his judgment with him. 

Speaker Reed's decision was made before the Fifty-first 
Congress had adopted its rules, and it was said in criti- 
cism of the Speaker that while the House had a right to 



270 The American Republic 

adopt such a rule, the Speaker had not. But Mr. Reed 
was acting in accordance with the instruction of his party 
majority as expressed in the party caucus, and the House 
afterwards adopted the rule in accordance with his de- 
cision. The minority would have filibustered against the 
adoption of such a rule and the quorum decision would 
have been necessary, probably, in order to carry the rule 
itself, though it is true that the regular parliamentary 
order would have been to adopt the rules first and to 
come to the decision as to the quorum afterwards. It 
may fairly be concluded that this notable parliamentary 
decision, while not violating the law of the Constitution, 
and while giving ample rights and privileges to the mi- 
nority, has made it easier for the majority to govern : it 
will tend to restrain partisan filibustering and bring des- 
patch to the business of the House. 

It will be seen from what has been said that the 

Speaker is the most important officer of the House. In 

fact, he is the most interesting and important 

The Speaker. & r 

legislative officer in the American Common- 
wealth, if not in the world. In no other free legislative 
body in the world is there an officer vested with such vast 
legislative power as has the American Speaker. Mr. 
Bryce says that our Speaker holds "a power which in the 
hands of a capable and ambitious man becomes so far- 
reaching that it is no exaggeration to call him the second, 
if not the first, political figure in the United States." 

The Speakership was an office well known in England 
when our Constitution was formed. The Speaker of the 
Commons was the spokesman of the House when the 
Commons addressed the king. Following the example of 
the English title the presiding officer of the legislative 
assemblies of the Colonies was called Speaker. 

In comparing the English and the American Speaker, 
we see the difference between a Speaker as a mere mod- 
erator, a fair and judicial presiding officer of the House, 



The House of Representatives 271 

and the Speaker as a political and party leader, the repre- 
sentative head of his party and the director of his party's 
policy. In England the Speaker is not a party The English 
leader ; he is a mere parliamentary presiding and the 

officer, like our Vice-President in the Senate. speaker 

It is said that after his election, after he passes Compared, 
from the benches to the Speaker's chair, he forgets to 
what party he belongs ; his purpose is to hold even, fair- 
handed justice between the two sides of the House. 
Generally the same Speaker continues in service, no mat- 
ter which party carries the House. "In 1841, when there 
was a decided Tory majority in the House, the Prime 
Minister, Sir Robert Peel, supported ' with great satis- 
faction ' the former Whig Speaker. Mr. Bryce tells us 
that Mr. Brand, although he had once been Whip of the 
Liberal party, was re-elected Speaker in 1874 by the 
Tories, who had then gained a majority, and served on 
until 1883; in 1895, Mr. Gully, a stanch Liberal, was re- 
elected by Conservatives, receiving a unanimous vote. 
Yet when a vacancy occurs, either by death or resigna- 
tion, the party in the majority appoints one of its own 
members. The chief requirements for the office are strict 
impartiality and a thorough knowledge of, and an ex- 
perience with, the rules and precedents of the House. 
Firmness, sound judgment, tact, temper, and courtesy, 
a clear mind and an upright character are, of course, im- 
portant considerations." ' 

The same good qualities are required in an American 
Speaker, but as to his party relations the case Sources of the 
is different. The American Speaker is a party Speaker's 
leader. He is expected to use his office for 
party purposes. The power of the American Speaker 
arises from three sources : 

1. His power of appointing the committees. 
1 Follett's The Speaker, p. 30. 



272 The American Republic 

2. His power of recognition, by which he assigns a member 
the floor to address the House or make a motion. 

3. His position as chairman of the Committee on Rules. 1 

We may include under the Speaker's power of appoint- 
ment his power to appoint the chairman of the Commit- 
1. The tee of the Whole House and his power to 

Power 6 of S appoint a Speaker pro tern. , for a period not to 
Appointment, exceed ten days, — in addition to his appoint- 
ment of the regular committees. As the committees 
have almost absolute power over legislation it will be seen 
that this power of appointment gives the Speaker tre- 
mendous influence over legislation. No other officer in 
the Government has such legislative power. "Legislation 
rests with the committees ; they may initiate what they 
please ; they may stifle any measures which have not their 
approval ; the rule that no bill shall be discussed without 
being reported by a committee might almost as well read, 
without being approved by a committee." 9 This power 
of appointing the committees comes to the Speaker not 
by the Constitution, but merely by the rules of the House. 
He has also the power of appointing the chairmen of all 
of the committees. This came from the custom that has 
grown up of considering the first named on the commit- 
tee as its presiding officer. 

The Speaker seeks to make up the committees to suit 
his own views and to promote his party policy. If the 
Speaker is opposed to legislation on a certain subject he 
can make up such a committee on that subject as will 
effectually bury in committee all proposals of legislation 
on that line. If he favors legislation on another line 
he can appoint a committee favorable to his view. Of 
course, the Speaker is influenced, if not bound, by sec- 
tional and party influences, and perhaps by his personal 

1 For the explanation of this factor in the Speaker's power, see pp. 258 et seq. 
9 Follett, p. 243. 



The House of Representatives 273 

obligations, in determining the composition of his com- 
mittees. 

Speakers have been accused of bargaining with mem- 
bers before their appointment to important chairmanships. 

" The Speaker has an opportunity to help his party in de- 
termining the relative strength of the two parties on a com- 
mittee; he can put the strong men of the minority on the 
committees that have little influence, and the weak men of 
the minority on the powerful committees. To act thus would 
be unfair, of course. If the minority is to be given any place 
on an important committee it is only just that it should be 
represented by its able men. Still there are many shades of 
fairness and unfairness. Probably no Speaker now ever so 
organizes the committtees as to secure to the minority their 
full proportionate influence. The Speakers who come near to 
it are called fair; those who do not are called unfair and 
partisan." * 

It has been proposed several times that the committees 
should be appointed by the House instead of by the 
Speaker; and that the minority members and the extent 
of their representation on the various committees should 
be determined by the minority itself. The result of this 
would be that the appointments would then be made by 
the caucuses of the two parties. This would cause " log- 
rolling," loss of time, and deadlocks. 

By the Speaker's power of recognition he may recog- 
nize a member who addresses the Chair and assign him 
the floor, with the privilege of making a 
motion or addressing the House. Originally, speaker's 
it was expected, and was the rule, that the ' p °werof 

1 Recognition. 

Speaker should recognize the member who 
was the first to speak ; but in practice it has come to pass 
that the Speaker uses this ordinary parliamentary duty 
for political and party purposes, and recognizes only such 

1 Follett's The Speaker, p. 230. 



274 The American Republic 

persons as he pleases. When a member rises and ad- 
dresses the Speaker he may be asked, "For what pur- 
pose? " and if the purpose be satisfactory to the Speaker 
the member may be recognized and allowed to have the 
floor. Usually it is prearranged with the Speaker that 
the floor is to be assigned to members in a certain order. 1 
As a rule, the Speaker is bound by certain usages in 
recognition. He will recognize a committee in the per- 
son of its chairman in preference to an indi- 

Usage and 

Unwritten vidual member ; during the various stages of a 
Law in "bill the member who has the measure in charge 

Recognition. . ° 

is preferred for recognition ; a member is usu- 
ally recognized to present a matter of privilege or a ques- 
tion of order ; during a debate the Speaker should give 
the floor alternately to members of each party ; and the 
Speaker generally uses his power of recognition in con- 
junction and co-operation with his party chiefs, the chair- 
men of the important committees. 

But while these unwritten usages may limit the power 
of recognition to an extent, there are times when the 
power is unlimited, and it may be used in emergencies in 
such an arbitrary manner as to give the Speaker absolute 
control of legislation. During Mr. Carlisle's term as 
Speaker, the Blair Educational Bill, which had passed the 
Senate three times, was not even allowed to be voted 
upon by the House. The Speaker was opposed to the 
bill, and he would therefore not allow any member to 
move to take it up for consideration, or to fix a day for 
its consideration. Mr. Blaine, while Speaker, often re- 
quired measures to be amended to suit his views before 
he would permit them to come before the House ; and 

1 " The extent of the custom is shown by a story told of a lieutenant- 
governor of a Western State when presiding over his State Senate ; he 
turned to the doorkeeper and said, ' Go out and find Senator Gunson — he 
is somewhere about the capitol — and tell him that he has been recognized 
and has the floor.' " — Follett's The Speaker, p. 250. 



The House of Representatives 275 

repeatedly the Speakers, by withholding recognition from 
members, have refused to allow the House to vote upon 
measures which, it was known, the majority of the House 
would readily pass if an opportunity offered. In Eng- 
land, if the Speaker of the Commons recognizes a mem- 
ber who, in the probable opinion of the House, was not 
the first to address him, the majority may overrule the 
Speaker and decide who shall address the House. In 
America, the Speaker decides, and he sees or refuses to 
see, as he thinks the public interest may require or his 
party interest may dictate. The only check to this power 
is the sentiment of the House, the moderation among his 
party majority ; that is, the fear that if he go beyond all 
endurance, if he be not fair to his party associates and 
(where party interests are not too much at stake) reason- 
ably fair also to his party opponents, the power which 
elevated him may degrade him. For the Speaker may 
at any time be removed from his position and another 
Speaker elected. 

It must be understood that in the arbitrary exercise of 
this power of recognition the Speaker does not act for 
himself alone. He acts for a cause ; or he is The s ker 
the organ of his party majority. He is the is a Party 
organ of the House, it is true ; but he is also 
the organ of his party and the agent of that party to 
bring things to pass. The House stands for party gov- 
ernment, and for the acts of the Speaker the party ma- 
jority must be held responsible. It is through him they 
govern. The power to govern, the power to act or to 
force action when the House desires, and thus to set 
aside obstructions and suppress those who would prevent 
the action of the House, — this power must be lodged 
centrally somewhere. In England it is in the Cabinet; 
that is, in the central guiding committee who manage the 
business of government, all of whom are members of Par- 
liament. In the American House of Representatives this 



276 The American Republic 

power is in the Speaker, who acts, presumably, with the 
advice and consent of the Committee on Rules, or of 
the Steering Committee of his party managers, of which 
the Speaker is chairman ; and, if need be in order to carry 
out party ends, no one can obtain the floor for any pur- 
pose except by the Speaker's consent. 1 To rebuke the 
Speaker is to rebuke the party, and the question whether 
there is in his office and in this power of recognition a 
dangerous one-man power, whether one man may be so 
trusted, is merely the question whether the party majority 
may be so trusted. The safeguard against an unscrupu- 
lous Speaker is the integrity of the party majority; that 
against an unscrupulous majority, in an independent and 
vigilant people. 2 
_. . , It is not to be understood from this account 

The Speaker s 

Power is of the Speaker's power that his power is un- 
limited. His powers are limited and pre- 
scribed : 

1. By the Constitution and laws of the United States. 

2. By the Rules of the House. 

3. By the precedents and practices of previous Speakers. 

4. By general parliamentary usage. 

It would be a daring Speaker who would attempt to over- 
ride all these restraints, although some Speakers have 
been accused of doing so. The House rules, the previ- 
ous precedents, and parliamentary usage should all be in 
harmony with the Constitution and the laws, but if, in 
the judgment of the Speaker, they should be in conflict, 
he decides by what limitations he will be bound. In 

1 A new member of the House had a bill which he wished to urge. Ap- 
proaching an Old member for support he asked whether he did not think 
his bill would pass the House. The old member replied that it was more 
important to consider whether it would pass the Speaker. 

2 For the Speaker's power as chairman of the Committee on Rules, see 
the account of the Proceedings of the House, pp. 258 et seq. 



The House of Representatives 277 

1877, when an attempt was made in the House to ob- 
struct by filibustering the declaration of President Hayes's 
election in accordance with the findings of the „ , 

& Speaker Ran- 

Electoral Commission, Mr. Randall used his dan Forces 
power as Speaker, and especially his power of Concurrence 
recognition, to defeat this filibustering attempt, with the Find- 
He declined to entertain points of order, and "Sectoral 
he even refused to entertain appeals; and al- Commission, 
though members mounted to the tops of their 
desks and with menacing arms and loud shouts de- 
manded recognition, the Speaker had neither ears to hear 
nor eyes to see any but the one who, as he knew, would 
make the proper motion, — the motion which he wished 
to have made and passed. In this he did patriotically, 
and against his party interest, what the majority of the 
House and of the country desired him to do. But in do- 
ing so he overrode the rules of the House and disre- 
garded preceding decisions and all parliamentary usage. 
He defended his course on the ground that the law of the 
land took precedence over the other limitations upon him, 
and that he was bound to act in harmony with the law 
providing for the Electoral Commission. "To me," he 
said afterwards, "the law was higher than the rules, when 
the law came in conflict with the rules." 1 

While the early Speakers were party men, always 
elected by a party division, they were not always party 
leaders. They did not employ the Speakership Early s P eak- 

to direct affairs. The election of Clay, in 181 1, ers - Cla y the 

1 1 . r 1 First Part y 

marks an epoch in the development of the Leader in the 

Speakership. Clay's personal popularity Speakership, 
promoted the importance of the office. He was six times 
elected to the Speakership during a period (1810-22) 
when the Republican party was coming to the control of 
the politics of the country without much rivalry or op- 
position. Clay used the Speakership, not so much for 

1 Follett, p. 123 ; Cong. Record, 47th Cong., 1st Sess., p. 4308. 



278 The American Republic 

party ends, but to give direction to his country's policy. 
Under Clay, who exercised personal as well as parliamen- 
tary power, the Speaker became the legislative leader. 
Clay's object was, not to moderate the House, but to 
guide it. He spoke freely upon pending measures, and 
he generally voted in order to go upon record before the 
House and the country. In becoming Speaker he for- 
feited no privilege of the floor. In Committee of the 
Whole, the Speaker has merely the status of a private 
member, and there Clay exercised the office of the leader. 
He performed the combined offices of moderator, mem- 
ber, and leader. 

The strength that came to the leadership through 
Clay's personal power remained to abide in the office, 
winthropas Speaker Winthrop (1847-1849) sought, in a 
Speaker. measure, to restore the English traditions of 
the Speakership by acting merely as a fair parliamentary 
presiding officer, treating friends and foes alike. But he 
could not do this while retaining and exercising the power 
of making up the committees. Party forces and interests 
were too strong to enable a Speaker to use this power 
and remain neutral. Winthrop's refusal to announce his 
committee policy touching the slavery question in the 
Territories was the issue that led to his defeat. Giddings 
wrote to Greeley in 1849: 

" The Speaker exerts more influence over the destiny of the 
nation than any other member of the Government except the 
President. He arranges the committees to suit his own views. 
If a Whig in favor of prosecuting the War be elected Speaker, 
he will so arrange the committees as to secure reports approv- 
ing of our conquests in Mexico. If he be opposed to the War 
he will so arrange them as to have reports in favor of with- 
drawing our troops. ' ' 

The power of the Speakership was considerably ad- 
vanced under Mr. Blaine (1 869-1 876). He greatly ad- 



The House of Representatives 279 

vanced the power of recognition. It is said that he bar- 
gained with men for the privilege of the floor. "If you 
will make your resolution so and so, I '11 see Mr. Biaineas 
that you have the floor, ' ' ' and many members Speaker, 
preferred to introduce bills stamped with Mr. Blaine's in- 
terference and approval than to lose their bills alto- 
gether. This was an unusual assumption of power, for 
the Speaker who can frame resolutions and alter bills 
very nearly controls the House. 2 

1 ' The most abiding difficulty of free government The Gonit- 
is to get large assemblies to work promptly and cabinefand 
smoothly either for legislative or executive pur- Congressional 

~~™~ " 3 Government 

P° SeS - Compared. 

Two schemes that have been evolved by political ex- 
perience for meeting this difficulty should be noticed. 

One way to make a large legislative assembly work 
well is to provide that its majority shall appoint a small 
group of responsible party leaders and follow them with- 
out question, adopting what they adopt, rejecting what 
they reject. This group of leaders make up the execu- 
tive government which the nation has chosen to support 
by electing a House to support it. This Government 
Committee are members of the House ; they are its official 
governors, and they are responsible for what is done. If 
they do well and propose good measures, they are to 
be retained. If they do ill and propose bad measures, 
they are to be turned out, and another government, or 
ruling committee, is to be put in. This is the English 
way, — having a central, ruling committee to control all 
legislation and government business in the House, whose 

1 Nation, vol. xxvi., p. 226, cited by Follett. 

2 Follett, p. 104. For further discussion of this subject the student 
should consult Miss Follett's valuable work, The Speaker of the House of 
Representatives, 1896. 

3 Bryce, vol. i., p. 155. 



280 The American Republic 

leadership the party majority in the Commons are sent 
up to support. 

This enables the House majority to act, by leading the 
great mass of its members to do what they are told to do 
and to vote as they are told to vote ; and it enables the 
nation to hold the small group of government leaders re- 
sponsible for what is done. Members are not expected 
to act on their own judgment. They must follow their 
leaders. Mr. Bagehot relates that an experienced mem- 
ber of the Commons once said that he had never but once 
presumed to exercise his own conscience and judgment 
in determining how he should vote, and then he soon 
found out that he had voted wrong. The party system 
requires the members to adhere to their leader, or appoint 
another. Otherwise they will be impotent to legislate at 
all. In this way, if the nation does not like what is done 
it knows exactly whom to punish. It can turn out the 
head leader, the premier, who is chairman of the govern- 
ing committee, and his committee must go with him. 

This system concentrates the political leadership and 
talent in the House in a single committee, the Cabinet, 
and in the group of leaders on the opposition benches 
who become the governing committee if the Cabinet be 
turned out. 

The other working plan is to divide the House into a 
large number of small groups, committing to each group 
The Congres- certain questions for final determination or re- 
sionai Plan. port. The groups are independent of one an- 
other, and each pursues the business committed to it in 
its own way without reference to the work of the other. 
The full House may then adopt or reject the conclusion 
of the few men appointed to attend to the particular 
business in hand. This is the committee system seen in 
our national House of Representatives. 

The committee system in America arose from the po- 
litical situation existing when the first Congress met. It 



The House of Representatives 281 

arose from natural custom ; it was not created or insti- 
tuted by design. When the first Congress met there were 
no government ministers present whose busi- 
ness it was to draw up measures and shape the Committee 
business of the assembly. This had to be done System. 

by the House. It was natural that the whole business of 
the House should be divided among its members. They 
were all equal in the matter of official responsibility, and 
it was but fair to divide up the work and to treat all alike. 
When the House had little business there were but few 
committees. At first the House, in Committee of the 
Whole, would decide upon the leading principles of a 
measure and then appoint a special committee to report a 
bill accordingly. As regular business recurred regular 
committees met the requirements. In 1802, there were 
but five committees. Gradually, with the growth of the 
country and the increasing business of the House, this 
number grew to the present complex system. There are 
now fifty-five regular standing committees in the House, 
each a little legislature for the business with which it has 
to deal. The following classes of committees should be 
noticed : 

1. The Committee of the Whole. — This is the whole 
House sitting as a committee. It is a form of proceeding 
under which the House is freer, less hampered committee of 
by rules. The Speaker calls some other mem- the Whole - 
ber to the chair, there is freedom of debate, the previous 
question is not applied, though the House in Committee 
of the Whole may decide to apply it in regular session. 
In Committee of the Whole the chairman cannot use the 
Sergeant-at-Arms and the mace to preserve order. The 
members sometimes take advantage of this to create dis- 
turbance, and then the Speaker must be sent for, whose 
presence restores order. 1 

2. The Caucus Committee.— -This is a party agency 

1 MacConachie, The Committee System, p. 166. 



282 The American Republic 

organized for party purposes. It is not properly a com- 
mittee of the House but of the party, to attend to party 
business. It is a substitute for the English Whip. 1 

3. Special or Select Committees. — These are created 
Special f° r special purposes, like committees of con- 
committees. ference, or they may be committees for un- 
usual purposes and occasions. 

4. The Standing Committees. — Some of these are 
licensed, or privileged committees, and all are appointed 
standing anew for every Congress by the Speaker. He 
committees, appoints the chairman of each by naming him 
first on the committee. 

To one of these standing committees every bill is re- 
ferred. Generally from the nature of the bill, or proposed 
measure, it can be determined to what committee it 
should be referred. But sometimes there is a dispute 
about this, and there is rivalry among the committees for 
the control of a bill. On such a dispute the fate of a 
measure may depend, for of two committees contending 
for the possession of a bill one may be favorable, the 
other hostile. 

Committee meetings for the consideration of a bill are 
usually secret. If open hearings are given to the advo- 
Committee cates and opponents of a bill, as is sometimes 
Sessions. done, reports of the proceedings are not usu- 
ally published ; and how a member votes on a bill in com- 
mittee, or what influences are brought to bear there, 
cannot be known ; for what occurs in private sessions the 
members are pledged not to reveal. 

The committee may amend a bill or substitute a new 
one. The decision of a committee with reference to a 
measure is practically final, for while the House may 
overrule the committee, it seldom does. Men who are 
absorbed in committee work on other measures are dis- 
posed to accept the conclusions of those men who have 

1 See p. 299. 



The House of Representatives 283 

been especially appointed for this particular business. 
They are the men appointed to hear the cause and decide. 
It is for this reason, it is said, that our legislation is by 
committees and not by the House. The House merely 
ratines the decisions of the committees. 

If the committee is unfavorable to a bill it may kill the 
measure by reporting adversely, or by reporting too late, 
or by not reporting at all. Most bills are 
buried in committees, as they ought to be; J^^Sa 
that is, the bills are never reported back to the its Com- 
House for the action of that body. If a com- 
mittee is smothering a good bill by neglecting to report 
upon it, contrary to the sentiment of the House and of 
the country, the House may order the committee to re- 
port, or it may transfer the measure to another commit- 
tee. These processes of taking a bill from the jurisdiction 
of a committee are not usual nor easy to apply. Com- 
mittee leaders will be apt to stand by one another in 
defence of their prerogative. 

When a committee is ready to report on a measure, for 
its passage or its rejection, the House can afford but a very 
short time for the consideration of the report. Consideration 
Aside from specially privileged committees of a commit- 
not more than two hours, on an average, can 
be allowed for a committee report. This is a very im- 
portant factor in making the action of the committee final 
in legislation. The House seems almost forced to accept 
what its committee does. The chairman of the commit- 
tee has an hour at his disposal, during which he is ex- 
pected to explain and advocate his measure. He can give 
but a bare outline of his bill and of his reasons in its de- 
fence. He yields the floor to others for brief speeches. 
Advocates and opponents of the measure, who have been 
previously agreed upon, speak on the bill. At the close 
of the allotted time the chairman of the committee moves 
to accept the report and at the same time he moves the 



284 The American Republic 

previous question. This cuts off further debate and the 
bill is then hurriedly voted on to get it out of the way of 
other measures pressing hard for time. Members wishing 
to speak must arrange with the Speaker and the chairman 
of the committee having the measure in charge. In con- 
sidering a committee report the House proceeds on the 
principle that it is not a deliberative, talking body, but 
that it is a deciding body, and that on a piece of commit- 
tee business the committee should have control, and that 
what the House does should be done through it. 
Advanta es of ^ Q advantages of our committee system 
the committee may be briefly summarized : 

1. It is a convenient means of killing off 
worthless bills. The House should not have its time 
taken up with all the ten thousand schemes proposed, by 
request or design, through its various members. It could 
not, if it would, consider one tenth of these measures. 
The committees can dispose of them rapidly by taking no 
further notice of them, and the House protects itself by 
requiring that a measure shall be considered in committee 
before it can come up in the House. 

2. It enables the House to deal with more bills. 
Many committees can pursue many lines of investigation. 
The House, by trusting its committees and accepting 
their work, can accomplish much more in legislation than 
it could otherwise do. In this the House takes the risk 
of accepting without knowledge the bad work of its com- 
mittees as well as the good. 

3. It promotes specialization in legislative work. 
While it divides the business of the House by separating 
the able, experienced leaders, the chairmen of commit- 
tees, into different and independent fields of labor, this 
may be compensated for by assigning to each leader the 
work for which he is especially trained and disposed. The 
chairman of the Committee on Naval Affairs, or on For- 
eign Affairs, or on Commerce, may have made the subject 






The House of Representatives 285 

of his committee work his life's study ; or his experience, 
training, and disposition may fit him especially for service 
on this particular line, though often the chairman of a 
committee has to learn his work after he is appointed to 
it. The system provides that every subject of legislation 
may have applied to its consideration whatever of special 
ability and training and experience the House can com- 
mand. Senator Dawes on Indian Affairs, Mr. McKinley 
and Mr. Dingley on the Tariff, and Mr. Holman or Mr. 
Cannon on Appropriations all became experts in their 
respective fields of legislation. No single body of men 
acting as a central committee for all business could be ex- 
pected to secure so wide and efficient a grasp on all the 
departments of legislation as these men had over their 
special work. 

4. The committee system affords a plan by which 
Congress can scrutinize and, if need be, expose the con- 
duct of the executive departments. The committee may 
investigate any department, call for reports, examine wit- 
nesses, and hold to a strict and constant accountability 
to public opinion the administrative departments. The 
committee and Congress can control the departments 
only to the extent of reporting the condition of affairs. 
This power of the committee may be used to the annoy- 
ance of the departments as well as for the enlightenment 
of public opinion. 

5. The committee system offers a suitable means of 
co-operation between the executive and the legislative 
departments. It is in the committee that the Adminis- 
tration can properly recommend and urge for passage the 
public measures that it favors. Cabinet members may 
not urge their measures on the floor of the House, but 
they may do so before the committees either in person 
or in writing. The committees may bring to the House 
all of the advantage of executive information and advice, 
and it is in this way, through the intermediary of the 



286 The American Republic 

committees, that the legislative and executive departments 
of the government work in harmony to the same end. 
Disadvantages But the Ameri can committee system has 
of the Com- serious disadvantages. Mr. Bryce and other 
nuttee ystem. p i£tlca.l observers of our Congress cite the 
following : 

(i) It breaks up the unity of the House; (2) cramps 
debate ; (3) lessens the harmony of legislation ; (4) facili- 
tates corruption ; (5) reduces responsibility ; (6) dissipates 
the ability of the House into independent groups; and 
(7) lowers the interest of the nation in the proceedings of 
Congress. 

As legislation is practically shaped in the committees, 
there is more interest in the proceedings of the committee 
than in the proceedings of the House. The House pro- 
ceeds in little independent groups working in many direc- 
tions at once, practically behind closed doors. The result 
of this is that, although the public are expected to keep 
a close watch on their representatives, the people cease to 
watch when they cannot see how things are done, or who 
are doing them. There can be no life in a debate in the 
open House, and but little use for one, when the question 
for debate has already been settled in the committee. 
Some set speeches may be made for campaign purposes 
in the country, but no member can hope to say anything 
that will have any weight in convincing his colleagues, 
nor can he in any way hope to instruct the House on the 
proposed measure. The committee chairman may do 
something in this direction, but his contribution is an 
official explanation, not a discussion of the proposed bill. 

Laws proposed by fifty different groups without corn- 
Mr. Bryce's mon oversight by any one interested in bring- 
cnticismon • a jj t ^ ^ awg - mtQ an harmonious code are 

the American *> 

Committee sure to be inconsistent and contradictory. The 
System. sma ll size of the committee and the secrecy 

of its proceedings offer to the "log-roller" and the 



The House of Representatives 287 

"boodler" an excellent opportunity for corruption. The 
temptation is all the stronger, as wrong-doing in the com- 
mittee is the more difficult to expose. The votes of a 
very few men may change the result in committee. The 
people cannot watch the doings of fifty bodies, and as 
Congress places the responsibility for wrong-doing upon 
the committees and the committees can so easily evade 
it, whom can the people punish? Upon this evasion of 
responsibility Mr. Bryce says : 

" In England if a bad act is passed or a good bill rejected, 
the blame falls primarily upon the Ministry in power whose 
command of the majority would have enabled them to defeat 
it, next upon the party which supported the Ministry; then 
upon the individual members who are officially recorded to 
have ' backed ' it and voted for it in the House. . . . But 
in the United States, the Ministry cannot be blamed, for the 
Cabinet officers do not sit in Congress; the House cannot be 
blamed, because it has only followed the decision of its com- 
mittee; the committee may be an obscure body, whose mem- 
bers may be too insignificant to be worth blaming. The 
chairman is possibly a man of note, but the people have no 
leisure to watch fifty chairmen ; they know Congress and Con- 
gress only; they cannot follow the acts of those to whom Con- 
gress chooses to delegate its functions. " a 

The vital need of providing unity and re- 

r & -•--'•'. The Finance 

sponsibility in congressional government is committees 
best illustrated by the practical working of the "^ 
Finance Committees. 

There is no more important subject with which a gov- 
ernment deals than the raising and disbursement of rev- 
enue. "The revenues of a State are the State," says 
Burke. If the people cannot control their own revenues, 
if they cannot discharge and punish their public servants 
for misconduct in raising and spending public money, 

1 Bryce, vol. i., p. 161. 



288 The American Republic 

republican government fails at a vital point. It is upon 
this subject that the great constitutional struggles of the 
past have occurred. If representative government fails 
at this point it fails in all. How does the committee sys- 
tem work in financial legislation? 

Financial bills in Congress are of two kinds: (i) Bills 
raising revenue by taxation ; (2) bills appropriating rev- 
enue. That is, tax bills and appropriation bills. 

In England, the House of Commons originates neither 
bills for raising revenue nor bills for spending revenue. 
English and Once a year the Chancellor of the Exchequer 
American i a y S before the House a full statement of the 
Money Bills revenue and expenditure of the past year, with 
Compared. an estimate of the needs for the next year, and 
suggestions of the means of raising the estimated amounts. 
These suggestions are embodied in resolutions, and when 
the House has accepted them bills are brought in in har- 
mony with the Chancellor's plan. The estimates are de- 
bated in the Committee of the Whole. " Members may 
propose to reduce any particular grant but not to increase 
it ; no money is ever voted for the public service except 
that which the Crown has asked for through its Minis- 
ters." ' The Crown, or the Ministry on its behalf, must 
not ask for more than it needs. If the year ends with a 
surplus the Ministry have overtaxed the people; if there 
be a deficit they have been incompetent in their esti- 
mates. The conduct of the Government in these respects 
shows whether it is capable or incapable, whether it 
should be turned out or kept in. 

In the United States, the Secretary of the Treasury 
corresponds to the English Chancellor of the Exchequer. 
The Secretary sends to Congress annually a written re- 
port containing a statement of the income and expendi- 
tures for the preceding year ; he sends, also, estimates for 
the coming year, with recommendations as to methods 

1 Bryce, vol. i., p. 175. 



The House of Representatives 289 

of taxation. Here the Secretary's agency in the matter 
ends. All financial legislation is then conducted by 
Congress and its committees. 

The committee for raising money is the Committee on 
Ways and Means, of eleven members. This is the most 
important committee of the House. The chair- w 
man of this committee is the leader of his party Means com- 
on the floor, ranking next to the Speaker. The n»mee. 

chief business of this committee is to report ways and 
means of raising money. Revenue bills are originated in 
this body, although the committee may decide to adopt 
as a measure to be reported to the House some bill com- 
municated to it, publicly or privately, by the Secretary 
of the Treasury. The report of the Secretary of the 
Treasury is referred to this committee, but the committee 
is not bound, either by law or custom, to base its bills 
and measures upon this report. If the Secretary be of 
the opposite party from the majority of the House, which 
is frequently the case, the committee will be apt to dis- 
regard, or it may even antagonize his suggestions. It 
would seem that in originating and presenting bills to de- 
termine how much money should be raised, the commit- 
tee ought to know how much will be spent. But the 
committee does not know this, for the various spending 
committees of the House, the chief of which is the Com- 
mittee on Appropriations, may cause the ap- 

. . rr r , / J , , Need of Con- 

propnations. to exceed the revenue and thus ce rted Action 
produce a deficit. The need of concerted ac- between 

x . Committees. 

tion between these committees is apparent. 
Sometimes the Committee on Ways and Means provides 
for raising much more money than the Government 
needs, — the tariff being levied primarily for protection, 
without regard to whether more or less of revenue be 
needed. In the House the revenue aspects of the bills 
are too much neglected, and debate turns very largely on 
whether certain provisions involve injury or benefit to the 

J 9 



290 The American Republic 

policy of protection, or to certain influential industries. 
The man most responsible for financial bills, for their 
composition and effect, is the chairman of the Committee 
on Ways and Means, and the principal tariff bill usually 
takes his name, — as the " Mills Bill," the "McKinley 
Bill," the"Dingley Bill." 
„ The business of spending money formerly 

Committee on * & J J 

Appropria- belonged to the Committee on Appropriations. 
This committee was but second in importance 
to that on Ways and Means. 

1 ' It inherited from the Committee on Ways and Means the 
right to claim the floor at any time for immediate consideration 
of its reports. Therefore, any measure to which a majority of 
its thirteen members and the Speaker would assent was assured 
of consideration in the House and might even be forced through 
as a ' rider ' ; and any measure to which its majority refused 
assent could not be considered." ' 

The House was thus under the guardianship of thirteen 
of its members. It was said that Mr. Randall, of Penn- 
sylvania, sometime chairman of the Committee on Ap- 
propriations, would sit in the House with his pockets full 
Special Pnvi- °f special appropriation bills, and when he saw 
leges of the anv measure coming up to which he was op- 
tne Appro- posed he would rise in his place and offer an 
priations appropriation bill. As such a bill always had 

Committee. 

Licensed the right of way it would block the other meas- 
Committees. urCj anc [ t j lus fa e chairman of the committee 
was able to prevent legislation to which he or his party 
was opposed. The Committee on Ways and Means, on 
Appropriations, on Printing, and on Elections were, in 
this respect, especially licensed committees; they pos- 
sessed the right to have their business considered at any 
time. 

In 1883, the Committee on Rivers and Harbors was 

1 MacConachie, Congressional Committees, p. 180. 



The House of Representatives 291 

made a permanent committee of the House, and grants 
of money for " internal improvements" were assigned 
to it. These "internal improvements" in- Committee on 
elude the working of rivers and harbors, and, Rivers and 
in general, the improvement of navigation. 
This is a source of great waste, extravagance, and corrup- 
tion, — a means by which members seek to turn public 
money into their own States and districts. A member 
votes for a bill, however extravagant and wasteful, if it 
provides a good appropriation for his district, — if by it a 
good sum of public money is to be spent among his con- 
stituents. The member acts, not as a representative of 
the whole country bound to guard the interest of the 
whole country, but as the representative of a special 
locality. This practice of voting away public money to 
various localities is known as the "distribution of public 
pie," and it is carried out by means of "log- u Log _ Roll _ 
rolling." "You help me with my measure, in g "and 
with some public buildings for my district, and " 
I '11 help you with yours." A California member, while 
acknowledging that an appropriation for public works 
was flagrantly extravagant and wasteful, excused his urg- 
ing it upon the ground that while the "pie " was being 
passed around his people ought to have a share. 

In 1885, the House further changed its rules so as to 
take from the Committee on Appropriations the jurisdic- 
tion over one half of the regular annual appropriation 
bills, giving to eight different committees of the House 
the right to report and control such bills. 1 These special 
committees are : 

The Committee on the Consular and Diplomatic Service. 

The Committee on Military Affairs. 

The Committee on Naval Affairs. 

The Committee on Post-Offices and Post-Roads. 

1 Hon. J. G. Cannon, in the House, March 4, 1897. 



292 The American Republic 

The Committee on Fortifications. 
The Committee on Indian Affairs. 
The Committee on Pensions. 

These committees, with the Committee on Rivers and 
Harbors, having the power to determine fully one half of 
the Government appropriations, 

1 ' each pursues its own way, without reference to the others, 
and none of them is guided further than it chooses by the 
Treasury Department. All the expenditures which they rec- 
ommend must be met by appropriation bills, but into the 
propriety of these bills the Appropriations Committee cannot 
inquire." 1 

The Congress whose final session expired in March, 
Causes of 1 897, appropriated $1,043,000,000, — the largest 
Approprfa- nt sum ra i se d by any Congress in our history since 
tions. the Civil War. Hon. J. G. Cannon, Chairman 

of the Committee on Appropriations, said at this time: 

11 The appropriations are in excess of the legitimate demands 
of the public service. This is not chargeable to either of the 
great political parties. It comes from the rules of the House, 
from the rules, practices, and courtesy of the Senate, together 
with the irresponsible manner in which the Executive submits 
to Congress estimates to meet expenditures. If congressional 
appropriations are extravagant and beyond the revenues of the 
Government, how much more so have been the estimates of the 
Executive!" 2 

Mr. Cannon further asserted that when the General De- 
ficiency Bill came up to the Senate it became "a mere 
vehicle for the Senate to load up and carry through every 

1 Bryce, vol. i., p. 178. 

2 Congressional Record, vol. xxix., Part III., p. 73, appendix, 54th Cong., 
2d sess., March 4, 1897. See also the remarks of Sayers of Texas, on be- 
half of the minority. 



The House of Representatives 293 

sort of claim that should have no consideration except as 
independent bills through competent committees." In 
the Rivers and Harbors Bill, which passed in 1896 over 
President Cleveland's veto, one work involving $1,000,- 
000 in expenditure was afterwards rejected as worthless 
by the War Department, while another of $4,500,000 
was subsequently passed for half that sum. 

The evils are: (1) excessive estimates by the Executive 
departments, (2) defective rules of Congress, (3) the work- 
ing of the two Houses at cross-purposes. 

The revenue bills, having passed the House, are con- 
sidered in the Senate. They may be amended there; 
some items may be stricken out, others added. The 
amended bills go back to the House, and the House usu- 
ally rejects the amendments; the Senate adheres, and 
a conference committee, consisting of three The Conference 
members from each body, is appointed; a Committee, 
compromise is settled hastily and in secret, and is ac- 
cepted in the hurry of the last days by a reluctant House. 

"The bills are scattered among eight separate committees; 
they are considered with no attempt at mutual responsibility, 
and without the slightest reference to the revenue-raising 
plans of the Ways and Means Committee ; there is expert 'log 
rolling' in one House and senatorial courtesy in the other; 
and when to these considerations is joined the fact that the 
President must either approve an appropriation bill or throw 
it out altogether by his veto, the course of events can easily 
be determined in advance." 1 

Mr. Bryce's critcism in this connection is of interest 
and importance: 

11 In this important matter of managing the national finances 
the Administration, instead of securing that each department 
gets the money that it needs, that no money goes where it is 
not needed, that revenue is procured in the least troublesome 

1 " Congress and its Appropriations," The Nation, vol. lxiv., p. 196. 



294 The American Republic 

and expensive way, that an exact yearly balance is struck, 
that the policy of expenditure is self-consistent and reasonably 
Mr. Bryce's permanent from year to year, is by its exclusion 
Criticism of from Congress deprived of influence on the one 
Appropria- hand and of responsibility on the other. The office 
tions. of Finance Minister is put into commission and 

divided between the chairmen of several unconnected com- 
mittees of both houses. A mass of business which specially 
needs the knowledge, skill, and economical conscience of a 
responsible ministry is left to committees which are powerful 
but not responsible, and to houses whose nominal responsi- 
bility is in practice sadly weakened by their want of appropriate 
methods and organization." l 

What remedies are proposed for these evils? 

Remedies for „., .,.■.-, r 1 

the Abuses of l - The introduction into Congress of the 
the Committee English system of ministerial government, or 

something like it. Let the President select the 
members of his Cabinet from members of Congress, and 
let these continue to hold their seats in that body while 

doing their work as heads of departments. 

i. Ministerial _,.. . , . 11111 

Government I hose who propose this remedy hold that 
in congress is the evil 6f our committee practice comes from 

Not Probable. , . . r . , _ 

the American dogma of separating the Legis- 
lative from the Executive body. These, it is asserted, 
should be more closely connected, and if the Executive 
could by its influence and control bring the Legislative de- 
partment to act in harmony with it, unity and responsi- 
bility in legislation would be promoted. This change 
would necessitate a constitutional amendment, and it is 
not probable that it will ever be accomplished. The 
securing of an amendment is such a slow, difficult, and 
ponderous task, — none having been added now for a hun- 
dred years except as the result of upheaval and war while 
eleven of the States were practically under military gov- 
ernment, — that this change may be dismissed as an im- 

1 American Commonwealth, vol. i., p. 212. 



The House of Representatives 295 

probable, if not impossible one. Besides, our written 
Constitution provides for the separation of the depart- 
ments of government, and in their practice Americans 
have come to accept this governmental system. What- 
ever change is found desirable and necessary in bring- 
ing the Executive and Legislative departments into unity 
and working harmony must be brought about by the law 
of our unwritten constitution, by the custom and usage 
of allowing the Secretaries to influence the conduct of 
Congress by proper touch and contact with the custom will 
congressional committees. It is evident that Regulate the 
the Executive ought to be in constant touch of the Depart- 
with the Committee on Appropriations, and ments. 

ought to be able, even before a bill is reported to the 
House, to expose its defects and extravagances. The 
committees of Congress and the heads of departments 
should work together, more and more, to bring harmony 
and honesty to financial legislation. This can be done 
in a greater degree than it has been, without a constitu- 
tional amendment. 

2. A second suggestion as a remedy for the evils of 
the committee system is, that all appropriation 2 A Central 
bills be sent to one committee for their first Guiding 

consideration. In addition to the regular com- 
mittees there should be established a Congressional tri- 
bunal made up from both Houses to consider A Congres . 
all the special claims with which appropriation sionai 

bills are now loaded, and which have no proper 
standing in such measures. 1 

While the two Houses are co-ordinate in legislation 
and responsibility, and while the Senate has the power 
to amend revenue bills and originate appropriation bills, 
it will be impossible to concentrate responsibility for 
financial legislation in a single committee of the House. If 
the two Houses are in party harmony, a joint committee 

1 Suggested by Mr. Cannon, in remarks cited on p. 292. 



296 The American Republic 

of the kind suggested might be held by the country 
responsible for the kind of financial legislation which it 
permits. But if the House and Senate are of different 
parties and their Joint Conference Committee on Fi- 
nance cannot agree, the people will have to rely upon the 
elections and electoral methods to bring the Houses into 
harmony, — by disapproving and changing the political 
complexion of that body whose course has seemed blame- 
worthy. 

3. As a means of adding further to party responsibility 
it is proposed that the Speaker, instead of giving repre- 
3. Constitu- sentation on the political committees to the 
tion of the minority party, should make up these commit- 

Committees . 1 r 1 • . t» 1 

from One tees entirely from his party majority. By the 
Party Only, "political committees" is meant those which 
shape administration, like the Committee on Appropria- 
tions, Ways and Means, the Military, Naval, Inter-State, 
and Foreign Commerce Committees, and Committees on 
Reform in the Civil Service, Rivers and Harbors, Rules, 
and Territories." 3 Not both parties, as now, but only 
one party should have places on the ruling committees. 
The party in power would then be more fully in power, 
and it would then be more directly responsible for the 
work done. This change could be brought about by the 
action of the Speaker alone. The minority members of 
the House, like those in the Commons on the Opposition 
benches, would then be merely critics and censors of those 
responsible for the conduct of the House. This 

The Minority , , . .. - ' , - • - .. 

as Censors of would be contrary to all precedent, but if a ca- 
the conduct of pa bi e anc i courageous Speaker, like Mr. Reed, 

the Majority. \ * , , 

should venture to set another precedent for 
a century to come, he might do much to promote the 

1 See Professor Woodrow Wilson's Congressional Government, p. 99, and 
also a suggestive pamphlet by Capt. F. E. Chadwick, of the American 
Navy, on An Unsolved Problem of Our Governmental System, 

2 Captain Chadwick. 



The House of Representatives 297 

efficiency of party government and to enable the people 
the more easily to- hold their public servants to account. 

"There would then certainly be a compact opposition to 
face the organized majority. Committee reports would be 
taken to represent the views of the party in power, Woodrow 
and instead of the scattered, unconcerted opposi- Wilson on 
tion, without plan or leaders, which now sometimes sponsibmty in 
subjects committee proposals to vexatious hindran- Legislation. 
ces and delays, there would spring up debate under skilful 
masters of opposition, who could drill their partisans for 
effective warfare and give shape and meaning to the purposes 
of the minority. But of course this cannot be done so long 
as the parties are mingled together in a common organization. ' ' 1 

Of this proposal Captain Chadwick says : 

' ' If the Committees on Appropriations, Ways and Means, 
and on Rules, were united and made up wholly from the pre- 
vailing party, it would, with its power to raise money and with 
the general control which it should have of bills for expenditure 
drafted by other committees, as those of Rivers and Harbors, 
Public Buildings and Grounds, etc., be able to control the 
national expenditures. The party in power would thus become 
wholly responsible for the means of raising money Captain 

and for the money it spends; for the things it does 
and for the things it fails to do. And if to this Committee 
were added the Committee on Rules, the new Committee 
would become a great Steering Committee, taking also the 
place of the party caucus, and we should have in this a body 
of men unable at least to shift responsibilty either in Congress 
or before the country; and this responsibility would finally 
attach to the party to which it belonged with a weight now 
almost altogether wanting." a 

It must always be borne in mind, however, that neither 
rules nor machinery nor organization will ever prevent 

1 Wilson's Congressional Government, pp. 99, 100. 

2 An Unsolved Problem, p. 8. 



298 The American Republic 

misgovernment, if the spirit and purpose of misgovern- 
ment abide with those entrusted with responsibility and 
power. No doubt one committee will do better than 
eight or twenty. An organized party committee of the 
strongest congressional leaders, on which the pressure of 
public opinion can be brought to bear, may be the means 
of bringing party pressure upon their followers, and this 
would do much to check waste. But no device can 
change the disposition of Congressmen to extravagance 
and corruption. 

" The Congressman who wishes to bleed the public treasury 
must be told that there are larger interests to consider than a 
government building for his town or the pension agents of his 
district, or his contractor acquaintances in the lobby, or there 
will be no hope of improvement in this vicious legislation." 1 

This concentration of responsibility on a few party 
leaders is being worked out partly by the increasing im- 
portance and power of the majority of the House "Steer- 
ing Committee," the Speaker, and his party colleagues of 
the Committee on Rules. Under the party government 
of the House it is coming to pass that what the House 
does it does by the consent of this committee. These 
party leaders, and especially the Speaker, should be held 
strictly responsible. If they do well they should receive 
the credit ; if they do ill, a House should be elected under 
obligation to displace these leaders from power, and to 
appoint others in their stead. Without a public senti- 
ment quick to condemn misgovernment other remedies 
are hopeless. 

In the House of Representatives, as in the House of 
Commons, each party has its appointed recognized leader. 
The leader in England, however, has more control of his 
party followers than in America. In each case the leader 

1 The Nation, vol. lxiv., p. 196. 



The House of Representatives 299 

has an agency for securing united and reliable party ac- 
tion. In England this party agency is the Parliamentary 
"Whip"; in America it is the House "Cau- 
cus. ' ' The Whips, or Whippers-in, in the Com- whip and the 
mons, are appointed by the party leaders to American 

. , ; . , . 1 , . Caucus. 

aid them in conducting the party business in 
the Commons. The Government Whip is likely to be a 
leading, experienced member who has the confidence of 
the Ministry. He is expected: (a) to inform Functions of 
the members on Government business, to ex- the Whip - 
plain to them the merits of a measure, or to tell them 
how to vote, if from absence or inattention they are 
ignorant of the business in hand; {b) to "keep a house," 
that is, a quorum, ready to pass Government measures 
when they come up, to make sure that the party ma- 
jority are there ready and willing to pass the party 
measures ; (c) to act as tellers, to count members when 
they pass out on a party division; (d) to obtain pairs for 
party members, if they cannot be present at a division ; 
(e) to keep touch of party opinion in the House and to in- 
form the leader to what extent he may depend upon 
party support. Without the Whip the Ministry could 
not be sure of its majority. 

In the House of Representatives these functions are 
performed, wherein they are needed at all, by the party 
caucus or by the Caucus Committee which acts as a 
party steering agency. It is not so important in Con- 
gress that every measure put forward by the leaders 
should pass, for no one can be turned out by an adverse 
vote. Party members are not so completely Methods of 
under the control of the leaders, and they more the Party 
freely and more frequently vote their individ- 
ual ways. If it is desired by the leaders to bring all the 
party members solidly into line for a measure it must be 
made a "caucus measure." The Caucus Committee ap- 
pointed by each party at the beginning of each Congress 



300 The American Republic 

will call a meeting of all the party members, and if it is 
decided at this meeting to approve the measure, the obli- 
gations of the caucus and the force of party loyalty are 
then brought to bear to induce all to vote for the measure. 
Objecting members are "whipped into line" by these 
party influences. It is not often that individual members 
bolt the caucus action. The member who consents "to 
go into caucus "ona measure is in honor bound by the 
party action. "To bolt " would bring him into party 
disfavor, and he would be likely to fail of renomination. 
When there has been no caucus action on a measure a 
member is free to vote as he pleases and still claim good 
party standing, though he may differ from a majority of 
his party colleagues. This allows a pretty wide difference 
of opinion within a party without causing disruption. 
Disruption occurs when men bolt party conventions and 
party caucuses. Not so many questions are made the 
basis of party voting in the House of Representatives as 
in the Commons, but on party questions party forces are 
as strong and party lines are as closely drawn. 

Collisions sometimes occur between the Senate and the 
House, when the two bodies cannot agree on important 
c m • n b - measures °f legislation. When the disagree- 
tween the Two ment over a bill cannot be adjusted a dead- 
lock occurs, and the proposed measure is lost 
or postponed. If the collision, or deadlock, occurs 
over a bill appropriating money necessary for the main- 
tenance of the Government, or upon some important 
measure that the country is demanding, or that both 
Houses feel should be passed, some solution of the 
The Confer- difficulty will be found in the Conference Com- 
ence Com- mittee. Each House appoints a special com- 
mittee, and these two committees are expected 
to meet in conference and, if possible, adjust the differ- 
ence. The result is generally a compromise of the differ- 
ences that exist. The famous Missouri Compromise of 



The House of Representatives 301 

1820, for instance, was evolved in this way. If the two 
conference committees unite in a report to both houses in 
support of the compromise and the report be supported 
there by all the conferees, the arrangement will probably 
be accepted by both Houses. If no arrangement can be 
reached in the Conference Committee, the proposed meas- 
ure, of course, fails. 

The legislative "rider" * is sometimes employed by one 
House against the other, in order to coerce, or induce, 
the passage of measures. In 1820, the Senate, Legislative 
in order to overcome the opposition of the Riders. 

House to the admission of Missouri as a slave State, at- 
tached the bill admitting Missouri as a "rider" to the 
Maine Bill. The two were sent to the House bound in 
one bill to be lost or passed together. 

In conflicts of this kind between the houses the Senate 
will be likely to win the greater number of points. Its 
members are more experienced, and as many of them 
have been members of the House they know the ways 
and weaknesses of that body; and as the Senate is a 
smaller body its majority can be held together better. 
Being a permanent body the Senate can afford to wait ; 
if it does not get what it wishes this year, there are years 
yet to come for at least two thirds of its members, while 
the Representatives, being members of a transient body, 
may be serving their last year. A Representative's po- 
litical fortunes and influence may be enhanced by defer- 
ring to the Senators. 

Although the Constitution designed the separation of 
the Executive and Legislative departments, some political 
connection between the two has been inevita- Relations of 
ble. Political practice has brought them into Executive and 
necessary relations. A recent President is said 
to have complained that he "had a Congress on his 
hands " ; while managing the affairs of the Administration 

1 P. 307. 



302 The American Republic 

he had also to manage Congress, — to induce it to 
promote, or to prevent its interfering with, the public 
„ , ^ interests. This indicated Executive presump- 

Each Depart- # , r f 

ment is Re- tion, and it was a reflection upon Congress. It 
the^eo^ie^for was resente d by a member, who complained 
its Own that Congress "had a President on its hands," 

whom they had to instruct and restrain. The 
departments are not thus answerable to one another. 
The legislative policy of Congress is not to be guided by 
the Executive, nor the Executive policy by Congress. 
Each department is to attend to its own business and 
neither is to handle or control the other. While the 
Constitution does not acknowledge a political relation 
between the departments, nevertheless, political usage, 
outside of the Constitution, or in violation of it, has led 
the two departments to bring their influence to bear the 
one upon the other. 

Indirectly the President may influence the 
President may action of Congress in the following ways : 
influence I# gy hj s message to Congress. 

Congress. 

The annual messages of Washington and 
John Adams were delivered before the two Houses in 
person. In those days the President's speech on this 
Th Pr •- sta te occasion at the opening of Congress was an 
dent's affair of considerable pomp and ceremony, cor- 

Message. responding to the king's speech from the throne. 
Jefferson discontinued this custom and sent a written mes- 
sage, a precedent which has been followed since. The 
President's annual message is now a long and able paper, 
reviewing the state of the country and urging its needs 
upon the attention of Congress. It serves merely as ad- 
vice to Congress which that body is in no wise bound to 
follow. The President may at any time send a special 
message to Congress, urging action on a particular cause. 
2. By calling Congress into extraordinary session and 
urging particular measures of legislation. 



The House of Representatives 303 

This is, on occasions, a very effective influence, though, 
if Congress be hostile to the President's proposals, it may 
reject them and adjourn without action. 

3. By the use of his veto, or by the knowledge that he 
will use the veto against proposed legislation. A bill 
may, on this account, be modified to meet the President's 
views, privately communicated. The President may let 
it be known that he will veto or approve bills in which 
members are interested, as a means of influencing their 
conduct on other measures favored or opposed by the 
Executive. This, of course, is unbecoming Executive 
conduct. 

4. By contact and communication through the Execu- 
tive departments, with the congressional committees and 
their chairmen. 

It is the unwritten law that the Cabinet officers may 
not appear before the houses to advocate their measures. 
But there is nothing in the Constitution or the written 
law to prevent this, and it would be altogether proper 
for a Secretary to appear in Congress. In the early years 
of Congress, however, proposals to have a Secretaiy be- 
fore Congress were resented as involving Executive inter- 
ference or control. When Hamilton was called upon in 
1790 for his famous Report on the Public Credit, the 
question arose whether it should be submitted in person, 
to be spoken, or in writing, to be defended there by some 
Representative who could be relied upon to reflect the 
opinion of the Secretary. The Congress preferred the 
written report, and subsequent Secretaries have followed 
this precedent, and it would now be very unusual for a 
Secretary to appear before one of the houses to present 
or advocate his measures. He may, however, appear be- 
fore any one of the committees. The Secretary's written 
reports are the formal and usual way of making his in- 
fluence felt on the Committee, but there are more positive 
ways. These come by personal interviews and contact 



304 The American Republic 

with the committee chairmen and, on proper occasions, 
by personal recommendations and arguments before the 
committees themselves. The committee takes the initia- 
tive in bringing the Secretary, or one of his departmental 
officers, before it. He may be summoned as a witness, 
or called upon to answer questions or to give information, 
and he may be allowed to advocate his proposals. A 
favorable committee may thus enable a Secretary to bring 
before it, and, through it, before Congress and the coun- 
try, the arguments in favor of his policy. Though this 
is an indirect, it is a very effective, way of influencing 
Congress. 

5. By the distribution of executive patronage. 

The President may give places to Congressmen or their 
friends, if they consent to support his policy in Congress, 
and he may withhold appointments from those who 
refuse. This is sheer bribery and a palpable source of 
corruption. This would lead Congressmen to vote, not 
according to their own independent judgment, not ac- 
cording to the merits of the bill or the interests of the 
country, but according to the party and pecuniary inter- 
ests of themselves or their friends. It was in this way 
the English kings, by the places and favors which they 
had to bestow, corrupted and controlled Parliament and 
exercised executive tyranny. In practical politics it is 
known that this practice exists to a degree, but public 
sentiment is so pronounced against it that no President, 
or his friends, would admit that he had been guilty of 
such corrupt abuse of his power. 1 A President who 
would do so would deserve impeachment and disgrace, 
and the people cannot be too jealous in guarding their 
representatives against such a palpable and corrupting 
abuse of executive power. In the same way, but in 
a more vulgar form, the executive departments have 
been charged with attempting to influence Congress by 

^ee p. 186. 



The House of Representatives 305 

awarding department contracts to nominees of Congress- 
men. 

On the other hand, Congress may bring in- 
fluence to bear upon the President in the fol- congress 

lowing Ways : ma y Influence 

° , „. « _ the Executive. 

1. By resolution, calling upon the President, 

or an executive department, to take a certain course, or 
censuring steps already taken. The President is not 
bound to notice such a resolution, nor in any way to act 
upon it. But, as a rule, a President prefers not to have 
his course condemned by the legislative branch of the 
Government. When President Jackson was censured by 
the Senate, in 1833, f° r the removal of the deposits from 
the Second United States Bank, the President sent his 
protest to the Senate, and his political friends did not rest 
until the resolution of censure was expunged. While a 
resolution may not alter in the least the course of the 
President, it may lead him to defend his policy before 
Congress and the country. 

2. By an investigating committee. This may be ap- 
pointed to inquire into the course of a department, to 
expose it before the public, or to embarrass the President 
politically, or to make campaign capital against him. 
This committee may summon a Cabinet officer to appear 
before it. The Secretary may legally refuse, though he 
is not likely to; but he is not bound to answer the 
committee's questions, nor to help it obtain the infor- 
mation which it seeks. The Secretary is responsible to 
the President, not to Congress or its committees. A 
Secretary will go a good way to avoid the annoyance of 
an investigation, and if he should refuse co-operation by 
trying to conceal information he would bring his depart- 
ment under public suspicion. 

3. Congress may refuse legislation which the President 
requests, in order to embarrass him or force him to com- 
ply with the wishes of Congress. This would be on a par 



306 The American Republic 

with the President's vetoing a bill favored by Congress in 
order to bring that body to his terms. It is beneath the 
dignity of either department, and neither should be moved 
by such tactics. 

4. By impeachment. The fact that Congress possesses 
this weapon of attack will restrain the President from any 
executive procedure on which impeachment proceedings 
might be based by a hostile Congress. Impeachment is 
a heavy weapon. It will not be brought to bear against 
the President except in extraordinary cases, or for po- 
litical purposes, to remove obstruction to the policy on 
which Congress is determined. 

5. Congress may pass bills restricting the scope of ex- 
ecutive acts, requiring a certain course of the President or 
his Secretaries, and forbidding them to do what they had 
hitherto been left free to do. That is, they may attempt 
to tie the Executive down to the course prescribed by 
Congress. The President may veto the bills restricting 
his executive action. If Congress pass them over his 
veto and the President still disregard and refuse to obey 
them, alleging that they are unconstitutional and that 
they interfere with his executive independence, he would 
be subject to impeachment. The President may be right 
in his constitutional views, and his views may even have 
the endorsement of the Supreme Court ; but the Senate 
will judge for itself of the constitutionality of the laws 
that the President has disregarded, and against the Sen- 
ate's findings in the trial executive and judicial opin- 
ions will not save him. It may be proper, as a means of 
determining which is right in such a conflict, and as a 
means of testing the legality of particular executive acts 
under the disputed laws, to have a case brought before 
the Supreme Court. If the Court decides against the 
President and he still refuses to obey and enforce the 
law, impeachment is then the only weapon which Con- 
gress can use against him. If two thirds of both Houses 



The House of Representatives 307 

have voted for the law which the President is defying, it 
is probable in such a case that the President would be 
removed by impeachment. This process of bringing the 
President to terms would be difficult; for, in the first 
place, it might be difficult to get a case before the Su- 
preme Court and a decision from that body before the 
expiration of the President's term; and, in the second 
place, Senators who might have voted for the policy of a 
law might not be led to vote for the President's convic- 
tion on a purely judicial question as to the extent of its 
violation; and because no single offence named in the 
indictment could be clearly made out. "Impeachment 
is the heaviest piece of artillery in the congressional ar- 
senal, but because it is so heavy it is unfit for ordinary 
use." 1 

6. Congress holds the power of the purse, and by its 
power to withhold an appropriation necessary to carry 
out an executive policy it may bring influence p 0W er of the 
and pressure to bear upon the President. Con- Purse - 
gress may check a scheme which the President favors, by 
refusing supplies for it. The President cannot carry on 
military operations without the requisite appropriations. 
If he were to purchase territory, Congress could withhold 
the purchase money. But while the President is within 
the ordinary and constitutional range of his operations, 
Congress will not attempt to control him and force him, 
by withholding supplies, to a policy which he opposes. 
To do that would be to stop the machinery of the Gov- 
ernment, and that would injure Congress and the country 
as much as it would the President. Congress would be 
"cutting off its nose to spite its face." 

7. By the use of a "rider" to an appropriation bill. 
A "rider " is an unrelated piece of legislation attached to 
another legislative measure with the purpose of having it 
ride through on the merits of the measure to which it 

1 Bryce, vol. i., p. 211. 



308 The American Republic 

is attached. "Riders" are usually attached to appro- 
priation bills. As these have to be passed it is thought 

Riders and Ap- t ^ ie ' ' r ^ er ' ' w *^ not De thrown out. The prac- 
propdation tice of tacking to appropriation bills irrele- 
vant and impertinent measures did not begin 
until more than forty years after the adoption of the 
Constitution. It then became a common practice and all 
parties resorted to it when in power. The practice gave 
rise to abuses, conflicts, and waste of public money. 
Public opinion became set against it, and many States 
adopted constitutional amendments requiring that no law 
shall contain more than one subject, and that subject 
shall be plainly expressed in its title. 

It is by the "rider " that Congress has most frequently 
attempted to coerce the President by the use of its money 
Historic powers. In 1855, the "Anti-Nebraska men," 

"Riders." or ^e early Republicans, in passing the Army 
Appropriation Bill in the House, attached a proviso, or 
"rider," forbidding the President to use the army to en- 
force the acts of the pro-slavery legislature in Kansas. 
President Pierce and the Democratic Senate denounced 
this as revolutionary. The Republicans maintained the 
right of the House to guard the purse and to impose con- 
ditions. Mr. Fessenden, one of the early Republicans 
leaders, said : 

' ' In the English Parliament from the earliest times not only- 
have appropriation and revenue bills gone together, but in 
cases without number it has been the habit of that Parliament 
to check the power of the Crown by imposing conditions to 
their appropriations of money. The only mode in which our 
ancestors of Massachusetts checked the powers of their royal 
governors was by granting money only on conditions. The 
power of supply and the power of annexing conditions to sup- 
ply have always gone together in parliamentary history, and 
their joint exercise has never been denounced as a case of 
revolution, or as calling for revolution, or tending to produce 



The House of Representatives 309 

revolution in any shape or form whatever. It is a power es- 
sential to the preservation of our liberties." J 

Senators Wade and Seward spoke to the same effect. 

In 1867, Congress used this weapon against President 
Johnson. It attached to an Army Appropriation Bill a 
clause virtually depriving the President of the command 
of the army, entrusting this to General Grant, the General 
highest in command. President Johnson was powerless, 
and he yielded because he knew that the bill would any- 
how be passed over his veto. 

In 1879, tn ^ s i ssue wa s again presented in Congress, and 
this time executive independence of Congress was estab- 
lished. In the controversy between President Hayes and 
the House, in 1879, tne difference was as to the repeal 
of the Federal Election Law supervising the control of 
elections in the States. The House wished to repeal the 
law empowering the President to use the troops in the 
South, and thus to leave the control of elections solely 
in the hands of the States. The House attached its re- 
pealing act to the Army Appropriation Bill. The Senate 
rejected this combination and conference committees were 
appointed. The Senate stood ready to pass the appro- 
priation bills at any time, but was not willing to accept 
as riders the proposed independent legislation. The 
Democratic conferees on the part of the House were de- 
termined that if the dominant Republican majority in the 
Senate insisted upon the maintenance of the objection- 
able laws and refused assent to their repeal, then the 
House would refuse, as they claimed the constitutional 
right to do, to make appropriations to carry on the Gov- 
ernment. Consequently the Congress expired and the 
necessary appropriations were not made. This situation 
compelled President Hayes to call Congress into extraor- 

1 Cited in The Abolition of the Presidency, by Henry C. Lockwood, 
chapter on " The Veto," p. 92. 



310 The American Republic 

dinary session in the spring of 1879, f° r this special pur- 
pose, — to vote necessary appropriations. The new House 
sent up a bill with the self-same rider. This time the 
Senate, owing to a change of membership in that body, 
passed the bill with the rider. In urging this policy of 
coercion against the President it was said by Mr. Black- 
burn of Kentucky, on behalf of the House: 

" It will then be for the President to determine whether he 
will block the wheels of Government and refuse to accept 
necessary appropriations rather than allow the Representatives 
of the people to repeal odious laws which they regard as sub- 
versive of their rights and privileges. . . . Whether that 
course is right or wrong it will be adopted, and I have no 
doubt adhered to, no matter what happens with the appropria- 
tions. . . . We have the right to vote money; let us an- 
nex conditions to it, and insist upon the redress of grievances. 
. . . The right of the people to withhold supplies is as old 
as English liberty. Frequently the Commons, feeling that the 
people are oppressed, have at last obtained redress by refusing 
appropriations." 

This seemed like an attempt to force the Executive to 
consent to legislation under the threat of starving the 
Government to death. Notwithstanding the expressed 
determination of the House, President Hayes vetoed the 
bills and Congress was obliged to pass the appropriation 
bills without the riders. In his veto message President 
p id nt and Hayes said, in substance : The new doctrine, 
the Legislative if maintained, will result in a consolidation of 
Rider * unchecked and despotic power in the House 

of Representatives. A bare majority of the House will 
become the Government. It strikes at the independence 
of the departments. The House is not entitled to say 
that its peculiar function is to represent the people ; all 
branches of the Government are representative of the 
people. The Constitution aims at the independence of 



The House of Representatives 311 

the departments ; this independence can be set aside only 
by the people themselves. The doctrine [of the rider] 
means the subjection to the House of Representatives of 
the Senate and the President in their legislative and ad- 
ministrative functions. 

This precedent did much to settle the conflicts between 
the Legislature and the Executive on this point, and 
encourage the President to resist coercion by the rider. 
If the President should veto an appropriation bill because 
of the attachment of an objectionable rider, and Congress 
should then leave the Government without supplies, the 
country would hold Congress responsible, and that body 
would be condemned by public opinion. If the President 
were allowed to veto single items in an appro- mt _ „ 

. & rf The veto of a 

priation bill without rejecting the whole bill it Section of a 
would be easy to meet the difficulty. He BlU * 

could then unhorse the rider by his veto and let the ap- 
propriation bill proper go through. In this way the 
President might also defeat petty jobs smuggled into a 
bill without delaying supplies, and thus save the country 
much money. 

The principle contended for by the Representatives in 
these conflicts, wherein they were seeking to impose the 
will of Congress on the Executive, is historic and of long 
standing in parliamentary government. But it applies in 
governments unlike our own, in which the Executive is 
subordinated to the legislature. In England, and in other 
constitutional governments in Europe, the legislature 
controls the Executive and may impose conditions to 
control executive conduct at any time, always saving to 
the Executive the right to appeal to the nation. The 
Executive can exercise no authority except what is con- 
ferred upon him by law, that is, by the law of the legis- 
lature. The popular struggles of the past have taken 
the form of an effort by the people to impose their will 
through their legislature upon their executive agents. 



3i2 The American Republic 

But in America the President derives his authority, not 
from the law of the legislature, but from the law of the 
Constitution, — the same source from which the legislature 
derives its authority. While the law must prevail against 
the mere will of the Executive, it must be the law of the 
Constitution, or statute law in harmony therewith. The 
Constitution was ordained, and all laws made in pursu- 
ance thereof should be designed, to secure Executive in- 
dependence, and might many times defeat the will of 
the people as expressed through their Representatives in 
Congress. This may not secure such popular representa- 
tive government as many would like to see, but it is the 
kind of government our fathers established in our Con- 
stitution. There is a constant tendency in the legislature 
to subordinate the Executive. Some think that the ten- 
dency of the legislature is to become omnipotent in the 
state. 1 If, even under our form of government, a large 
preponderant majority of the people wish to have it so, 
they can accomplish it. When the two Houses agree by 
a two-thirds vote, the Executive is powerless. It is right 
that such a preponderant majority of the people should 
rule without the hindrance of a veto. When Congress 
possesses this sanction from the people the Executive is 
swallowed up, and there is no longer a balance of power 
among the departments. The Congress can bind the 
President, and if he refuses to respect the bounds as- 
signed to him by Congress, he can be cast out. He be- 
comes only an agent limited by express commands with 
no volition or discretion left him. 2 

So the chief source of executive strength is in his 
legislative function, the veto. If he be shorn of that, or 
if its strength be spent, he is at the mercy of Congress. 
If he is able to hold his own, it is not, as Mr. Bryce says, 

1 Note the growth of legislative power in appointments and treaties, pp. 
165 et seq. See note in Ford's Federalist, p. 409. 

2 See pp. 100 et seq,, on Executive independence. 



The House of Representatives 313 

" by virtue of any properly executive function, but because of 
the share of the legislative function which he has received ; the 
Executive holds its ground not because of its separation from 
the legislature but because of its participation in a right prop- 
erly belonging to the legislature." 

Congressmen are exempt from arrest during their at- 
tendance at sessions and in their going to and returning 
from the same, — except when treason, felony, Exemption 
and breach of the peace are charged against from AlIest - 
them. Jefferson thus explains the intention in this ex- 
ception : " The laws shall bind equally upon all, and espe- 
cially those who make them shall not exempt themselves 
from their operation." The sessions of Congress must 
not be interfered with by the enforced absence of any of 
its members, except on a charge of very great importance. 
If members were allowed to be arrested and could be com- 
pelled to await the processes of law, the people would be 
unrepresented, and corrupt politicians would trump up 
absurd and empty charges against a representative of 
another party, not for the purpose of convicting him of 
any crime or misdemeanor, but merely to weaken the 
opposing party in Congress by causing the temporary loss 
of some of its members. The Congressman at his trial 
might easily vindicate himself, but by that time the vote 
on a crucial point might have been taken and his district 
and principles be unrepresented. 

The patronage of Congress is not extensive. The 
members all have clerks. The House employees, in addi- 
tion to the clerks of the members, are ap- congress and 
pointed, supposedly, by the four officers of the Patronage. 
House, — the Clerk, the Doorkeeper, the Sergeant-at- 
Arms, and the Postmaster. But these officers do not 
really appoint the House assistants. 1 These places are 

1 In 1901 there were 357 employees of the House, in addition to the 
members' clerks, with a salary roll of $400,000. 



3H The American Republic 

distributed to members for their influence in securing the 
election of the chief officers of the House, and many- 
places are created for the henchmen of members. This 
abuse has been lately exposed, and it has been found 
that a large number of men are on the pay-rolls of the 
House who, being nominally appointed to one kind of 
work, are found to be doing something quite different, or 
to be at home on a long vacation engaged in the political 
work of the members appointing them. Men who have 
a "pull" with some State delegation receive pay for 
Abuses of work which other men perform. 1 Extensive 
Patronage by abuses in patronage by members rewarding 
their political workers have led to the sugges- 
tion that Congressmen should be debarred by law from 
recommending the appointment of persons not only to 
positions under the control of the executive departments 
but to all positions under the National Government. 

The ''Third House" is the Lobby. Literally, the 
lobby consists of the halls and anterooms that surround 
The "Third the legislative chambers. It has come to mean 
House." t j ie men anc i women— there are many female 
lobbyists — who hang about the legislative chambers and 
who make it their business to influence members in favor 
of, or in opposition to, certain measures. These are the 
professional lobbyists, and they are always paid for their 
services by the persons interested in the proposed legisla- 
tion. They may do honorable work for their clients, but 
frequently their work is that of the corruptionist. On the 

1 A late report to the House on this subject says : " Winthrop C. Jones 
is carried on the roll as a locksmith at a salary of $1440, while in point of 
fact his duties as locksmith are performed by Daniel P. Hickling, who is 
on the doorkeeper's roll as a session folder at $75 per month. Thus the 
position of locksmith, the duties of which require only a payment of $75 
per month during the session, pays to the man who performs none of its 
duties $1440 per annum." For account of other specific abuses in this 
direction see The Outlook, March 30, 1901, pp. 701, 702, and Mr. Moody's 
report to the House, March, 1901. 



The House of Representatives 315 

other hand, many men advocate before committees meas- 
ures in which they are especially interested, and such 
lobbying may be honorable and useful public service. 
When bills are before Congress whose passage would 
greatly affect private interests it is right that the persons 
whose interests are affected should be allowed to present 
their views. Lobbying is a valuable process for bringing 
out the facts and the arguments in a cause. If the de- 
cision can be left uninfluenced by other than the public 
interests no harm will be done. But men with private 
interests at stake are more insistent and unscrupulous 
than men who seek only to guard the public interest, and 
" lobbying " has come, therefore, to be regarded generally 
in an unfavorable sense, and a "professional lobbyist " is 
looked upon as one who is seeking, by hook or by crook, 
to promote some corporate or private end at the expense 
of the public welfare. The complex processes of legisla- 
tion have brought it about that it is almost impossible for 
a bill to get through Congress merely upon its merits, and 
the advocates of good claims and worthy public measures 
must, perforce, employ the lobbyist to manage their 
measures. 1 

REFERENCES ON THE HOUSE OF REPRESENTATIVES 

1. Bryce, American Commonwealth, vol. i., chapters xiii.-xxi. 

2. Wilson, Woodrow, Congressional Government. 

3. Follett, M. P., The Speaker. 

4. McConachie, Lauros G., The Committee System. 

5. Ford, Henry J., The Rise and Growth of American Politics, chap. xx. 

6. Hinsdale, Civil Government. 

7. The Congressional Directory and the Congressional Record. 

8. "The United States Congress," J. C. Ridpath, Arena, vol. xvii., 

p. 969. 
1 See Bryce, vol. i., p. 677 ; Lalor's Cyclopedia of Political Science, article 
on " Lobby " ; " The Third House : Is Lobbying a Necessity?" Indepen- 
dent, vol. 1., p. 181 ; "Cause and Cure of the Lobby," A. G. Sedgwick, 
Atlantic Monthly, vol. xli., p. 512 ; " The Strikers of the Lobby," J. Par- 
ton, Atlantic Monthly, vol. xxiv., p. 216; "Lobbying in Congress," At- 
lantic Monthly, vol. xxiv., p. 361, J. Parton. 



316 The American Republic 

9. " Congress and Its Critics," North American Review, vol. clxii., p. 355. 

10. Filibustering : "How to Deal with a Filibustering Minority," J. B. 

McM aster, Forum, vol. xvi., p. 471. 

11. "The Speakership, Edwin Maxey, in Some Questions of Larger 

Politics. 

12. Procedure in Congress: "How a Bill Becomes a Law," G. H. 

Walker, Chautauquan, vol. xiv., p. 569. 

13. " The Quorum in Congress," The Nation, vol. lviii., pp. 148, 306. 

14. " Reconquest of the House of Representatives," J. C. Ridpath, 

Arena, vol. xx., p. 118. 

15. "Obstruction as Affected by the New Rules in Congress," H. C. 

Lodge, Nineteenth Century, vol. xxix., p. 423. 

16. "Congress or Parliament," T. P. Gill, Contemporary Review, vol. 

liii., p. 758. 

17. "Congress: Its Procedure Compared with that of Parliament," J. 

Chamberlain, Nineteenth Century, vol. xxviii., p. 861. 

18. " Misrepresentation in Congress," L. S. Bryce, North American Re- 

view, vol. cxlviii., p. 184. 

19. " The Autocrat of Congress," H. L. West, Forum, vol. xxiii., p. 343. 

20. "A Century of Congress," J. A. Garfield, Atlantic Monthly, vol. 

xl., p. 49. 

21. " Conduct of Business in Congress," North American Review, vol. 

cxxviii., p. 113. 

22. On Appropriations: "How Congress Votes Money," C. F. Crisp, 

North American Review, vol. clxii., p. 14; "Appropriations 
and Misappropriations," North American Review, vol. cxxviii. ; 
" Spending of Public Money," T. B. Reed, North American Review, 
vol. liv. ; " Congress and its Appropriations," The Nation, vol. lxiv., 
p. 196. 

23. " The House of Representatives and the House of Commons," 

Hilary A. Herbert, North American Review, vol. clviii. 

24. Johnston, Alexander, article on "Riders" in Lalor's Cyclopedia of 

Political Science. 

25. " How Our Laws are Made," R. Ogden, Nation, vol. lvi., p. 191. 

26. " How to Purify Congress," M. V. Allen, North American Review, 

vol. clix., p. 159. 

27. "Is Congress a Sovereign Legislature Touching Our External Re- 

lations?" Senators G. G. Vest and G. N. Dolph, North American 
Review, vol. clvii., p. 234. 

28. " The Power of the Speaker of the House of Representatives," J. B. 

Walker, Cosmopolitan, vol. xxiv., p. 630. 



CHAPTER VI 

THE JUDICIARY 

THE Judiciary is a third department of Government 
under the Constitution. 

The Judicial power of the United States is vested in 
one Supreme Court and in such inferior courts as Con- 
gress may establish from time to time. It was The Tudicial 
difficult in the Convention of 1787 to secure the Power: 

power to establish inferior courts, against the ere Vested - 
objections of the small State party. It was thought that 
the national courts, being merely appellate in their jurisdic- 
tion, would have so little to do that one Supreme Court 
would be sufficient. The growth of national interests and 
of national law was not foreseen. 

The Judges, both of the Supreme and inferior courts, 
hold their offices during good behavior. They receive 
for their services a compensation which shall Tenure and 
not be diminished during their continuance in Compensation. 
office. 1 

Under the old Confederation there was no National 
Judiciary. Congress was made a court of appeal in dis- 
putes between two or more States concern- The Judiciary 
ing boundaries, jurisdiction, and other causes. under the 
Congress might establish courts for the trial of 
piracies and felonies on the high seas, and courts for re- 
viewing cases of capture and other admiralty matters. 
The Congress itself occasionally acted as a court in inter- 

1 Constitution, Art. III., Sec. I. 
317 



318 The American Republic 

State disputes and erected certain admiralty courts which 
passed on maritime affairs. But neither Congress nor 
these courts had any power or process of executing their 
judgments when they were questioned. The Articles of 
Confederation were construed by the State courts. When 
national law began to operate upon individuals it became 
necessary to have a National Judiciary, 
classes of There are three classes of Federal Courts : 

Federal courts. x< The Supreme Court. 

2. Circuit Courts. 

3. District Courts. 

The Supreme Court was required by the Constitution 
itself; the erection of the other courts was left to the dis- 
cretion of Congress. 

In the Judiciary Act of September 24, 1789, Congress 
carried into effect the provisions of the Constitution as to 
judiciary Act the Judiciary. This act in its essential features 
of 1789. still stands as the statute determining the con- 

stitution of the Federal court. In the history of national 
legislation no Act can be counted of greater importance, 
so far as legislation has permanently affected any of our 
institutions. Its abiding influence and importance are 
enough to immortalize its author, Oliver Ellsworth, of 
Connecticut. 

Originally, by the Act of 1789, the Supreme Court num- 
Sizeof bered six. There are now nine, a Chief Jus- 

Supreme tice with a salary of $10,500, and eight associate 
Justices with salaries of $10,000 each. 

The Justices are nominated by the President and con- 
firmed by the Senate. They are removable only by im- 
„ peachment. English Justices are removable 

are Remov- by the Crown on an address, or petition, from 
both Houses of Parliament. The securer 
tenure in America is to ensure the independence of 
the Judiciary and to prevent their subserviency either 
to the executive or to the legislative department. The 



_ 



The Judiciary 319 

separation and independence of the three co-ordinate 
departments of our Government are again guarded at 
this point. 

The regular sessions of the Supreme Court are from 
October to July in each year. The presence of six judges 
is required to pronounce a decision. This se- Sessions of th 
cures a thorough consideration of every case, Supreme 
though it prevents the expediting of the busi- Court * 

ness before the Court. Every case is argued before the 
full Court ; the judgment of the majority of the Court is 
then expressed, and the written judgment is then pre- 
pared by one of the Justices. 

Congress has established nine judicial circuits, or nine 
Circuit Courts. Each of these has two circuit judges 
with a salary of $6000, and one Justice of the Supreme 
Court is assigned to each of these circuits. The circuit 
court may be held either by a circuit judge alone, or the 
Supreme Court Justice for that circuit alone, 

. . , . i-i • • -i Circuit Courts. 

or by both together, or by either sitting with 
the district judge, in that district, or by the district judge 
alone. In 1891, an act established Circuit Courts of Ap- 
peals, to which cases may be taken from the circuit and 
district courts, — a further appeal lying to the Supreme 
Court in certain classes of cases. This act was for the 
purpose of relieving the Supreme Court, which was nearly 
three years behind in its cases. 

The District Courts J are the third form of the Federal 
courts. They are at present fifty-five in num- District 

ber. Their judges receive a salary of $5000. Courts. 

They are appointed by the President by and with the ad- 
vice and consent of the Senate. 

Congress has erected a Court of Claims for the special 
purpose of trying claims of private persons court of 
against the United States. Appeals may be Claims - 

taken to the Supreme Court. 

1 See Bryce, p. 231, Statesman's Year Book, 1898. 



320 The American Republic 

What kind of cases come under the jurisdiction of the 
Federal courts? 

jurisdiction of *• "Cases in law and equity arising under 
Federal the Constitution, the laws of the United States, 

and treaties made under their authority." x 

In any case to which a Federal statute applies suit may 
be brought in a Federal court. Any defendant who rests 
How a Case ^is defence on a Federal law may have the case 
may be transferred to the Federal court though it may 

from^state nave arisen in a State court. The Judiciary 
to a Federal Act of 1789 lays down the rules for removing 
a case from the State to the Federal court. If 
the State court has decided against the validity of a treaty, 
or law, or authority exercised under the United States ; 
or, if the State court has decided in favor of the validity 
of a State law or exercise of authority, which is questioned 
as being contrary to the Constitution, treaties, or laws 
of the United States ; or where the State court decision 
is against any title, right, privilege, or immunity claimed 
by either party under the United States Constitution 
and laws, — in such cases the action may be transferred 
from the State to the Federal courts. 

The principle of the rule is obvious : State construction 
of a Federal law unfavorable to Federal authority may be 
reviewed by Federal construction. A State construction 
favorable to Federal authority needs no review, the Fed- 
eral power being already sufficiently vindicated. 2 The 
Federal authority is the final judge of the extent of its 
powers, and State decisions and actions cannot interrupt 
the exercise of these powers. This principle applies also 
to executive acts under Federal authority. Within its 
legal sphere the United States law operates of its own 
right, and it is supreme and sufficient ; no State authority 
can resist it. For illustration : A person arrested by a 
Federal officer may not be released by a State court on 

1 Constitution, Art. III., Sec. 2. 2 Bryce. 



The Judiciary 321 

a writ of habeas corpus. This was tested in Wisconsin 
in 1855. A Mr. Booth violated the Fugitive Slave Law 
of 1850, by aiding a fugitive slave to escape, state Action 
He was arrested and held in custody by Able- may Not In " 
man, the United States marshal. Booth ap- operation of 
plied to the State court for a writ of habeas FederalLaw - 
corpus, and on this writ the highest State court of Wis- 
consin ordered his release. Chief Justice Taney in re- 
viewing this case for the United States Supreme Court, 
said: 

" The powers of the general Government and of the State, 
although both exist and are exercised within the same territorial 
limits, are yet separate and distinct sovereignties, acting sepa- 
rately and independent of each other, within their respective 
spheres. And the sphere of action appropriated to the United 
States is as far beyond the reach of the judicial process issued 
by a State Court as if the line of division was traced by land- 
marks and monuments visible to the eye." 1 

Booth was retained in custody by force of United States 
law, and the right of a State, or a State officer, to release 
him was denied. 

2. ' ' Cases affecting ambassadors, other public ministers, 
and consuls/' 2 

These persons have an international character, and it 
would not be proper to have their cases dealt with by 
State authority. 

3. "Cases of admiralty and maritime jurisdiction," t. e., 
prize cases, and cases relating to navigation. 

4. "Controversies to which the United States shall be 
a party." 

The United States should not be compelled to sue or 
be sued in a State Court. A money claim against the 
Federal Government will come up in the Court of Claims. 

1 Booth vs. Ableman, 21 Howard, 516. See also Thayer's Cases. 

2 Constitution. 



322 The American Republic 

5. Controversies — 

(a) Between two or more States ; 

(b) Between a State and citizens of another State ; 

(c) Between citizens of different States ; 

(d) Between citizens of the same State claiming lands 
under grants of different States. 

(e) Between a State, or its citizens, and foreign States, 
citizens, or subjects. 

It was supposed that in all these cases a State court 
was likely to be partial. A claim of a non-resident, and 
especially of an Englishman or foreigner, against a citizen 
of one of the States was likely to be prejudged by local 
courts and juries in 1787. English creditors could not 
secure payment of just claims in the State courts from 
1783 to 1789. 

One of these classes of controversies (b) has since been 
withdrawn from Federal jurisdiction by the Eleventh 
The Eleventh Amendment. It violated the sense of dignity, 
Amendment, independence, and sovereignty of a State to 
allow it to be dragged into court by a private plaintiff. 
It was supposed and so announced by Hamilton and 
Marshall that the clause giving this jurisdiction to the 
Federal court would not be construed in such a way as 
to give the right to an individual to sue a sovereign State 
without its consent. But it was shown in the celebrated 
chishoimvs. case of Chisholm vs. Georgia, in 1793, that this 
Georgia. construction which Hamilton mentioned as ex- 
pected, could not be had by mere implication. Federal 
authority might, by implied powers, become greater than 
was expected, but not less, and if the Constitution was 
to be construed as Hamilton and Marshall suggested, it 
must be as the result of expressed words. Chisholm sued 
Georgia in United States Courts for the recovery of a 
claim. Georgia refused to appear, and the Supreme 
Court, Chief Justice Jay rendering the decision, pro- 
ceeded to construe the Constitution in the way precisely 



The Judiciary 323 

that Hamilton said it would not be construed, 1 and the 
Court gave judgment against Georgia by default. This 
decision alarmed the States, and the Eleventh Amend- 
ment passed Congress and was duly accepted by the 
States. This declares : 

" The judicial power of the United States shall not be con- 
strued to extend to any suit commenced or prosecuted against 
one of the United States by citizens of another State, or by 
citizens or subjects of any foreign State." 

Under the shelter of this amendment several States have 
been able with impunity to repudiate their debts. The 
National Government cannot require the States to pay 
their debts. This condition might involve us in difficul- 
ties with foreign powers, if State debts held by citizens 
of foreign countries were repudiated. Diplomacy could 
not reach the State, yet foreign citizens would have a 
grievance. The National Government would probably 
pay to avoid a foreign complication, as it has repeatedly 
paid indemnities for injuries done to foreigners within 
the States. Public sentiment would have to be relied 
upon to bring the State to fulfil its obligations. 

The Supreme Court has original jurisdiction in cases 
affecting ambassadors and wherever a State is a party. 
In other cases its jurisdiction is appellate, — that is, cases 
are brought up to it on appeal from the lower courts, Fed- 
eral or State. A Federal act cannot impose functions 
and duties upon a State court ; the States may refuse to 
accept and discharge these duties. 2 

The jurisdiction of the Federal Courts is statutory. 
That is, these courts derive their powers from the specific 
grants of the Constitution and the statutes Federal Court 
made in accordance with the Constitution, jurisdiction is 
The United States courts have no common-law 
jurisdiction. Their powers are to be found in the written 

1 See Federalist, No. 81. 2 See Prigg vs. Pennsylvania. 



324 The American Republic 

law, not in general principles and usages of law. A 
Federal law applicable to any case prevails, in that case, 
against any State law ; and whether a Federal law is ap- 
plicable every suitor is entitled to have a Federal Court 
determine. By this principle clashes of authority between 
State and Federal courts are avoided and the two juris- 
dictions work together in harmony over the same people 
at the same time. In administering; a State law 

Federal Courts . i -r- , i 1 /• 1, 

Follow state in an y case the rederal courts always follow 
Decisions on t h e decisions of the State courts. In the Dred 

State Law. 

Scott case, 1857, there were those in the Court 
disposed to regard the issue raised by Dred as purely a 
Missouri question, to be decided entirely according to 
Missouri law. This view held that United States law was 
not applicable to the case ; the case did not come under 
United States jurisdiction. This view was held by the 
majority of the Court in a part of its decision, and if it 
had not gone beyond this the Court would have been on 
safer ground. It would have remanded Dred to slavery, 
because the highest Missouri court had so ordered in his 
case. The United States Court regards the State de- 
cision as settling any question to which only State law 
applies. The Supreme Court has overruled its own de- 
cisions on points of State law in order to bring itself into 
harmony with the view of the highest State court. State 
courts always follow Federal decisions upon questions of 
Federal law. 

The Federal Marshal is the sheriff of the United States 
Court. It is the Marshal's duty to execute the writs, 
United states judgments, and orders of the court. He may 
Marshal. ca \\ a p OSSe f citizens to his aid ; if that is not 
sufficient he may apply to the Government at Washington 
for Federal troops. If the President refuses the necessary 
force the Court is powerless to execute its decrees, as in 
the case of Marshall's decision against Georgia, under 
the presidency of Jackson. The Marshal is the executive 



The Judiciary 325 

arm of the Court, and he is expected to protect the Court 
from disorder and assault. A Marshal appointed to de- 
fend Justice Field from a threatened assault, shot and 
killed the assailant of the Justice and was held not to be 
answerable to California law, the State in which the justi- 
fiable defence was made. 1 

The United States District Attorney is the 

J United States 

Federal prosecutor. He institutes proceedings District 

against persons violating Federal law. Attorney. 

The District Attorney and the Marshal are both un- 
der the direction of the Attorney-General of the United 
States, the head of the Department of Justice. Through 
these officers Federal authority covers the whole territory 
of the Union. 

From a political point of view the most important func- 
tion of the Judiciary is its power of declaring 
an act unconstitutional. This power applies Declare a Law 
not only to the acts of Congress but to the Unconstitu- 

r r , , . , a tional - 

acts of any of the State legislatures. An act 

declared unconstitutional by the Supreme Court is as if it 

had never been. 

' ' Rights cannot be built up under it ; contracts which de- 
pend upon it for consideration are void ; it constitutes a pro- 
tection to no one who has acted under it, and no one can be 
punished for having refused obedience to it before the decision 
was made. It is to be regarded as never having, at any time, 
been possessed of any legal force." a 

It is a power not conferred expressly by the Consti- 
tution, and when it was first exercised by the national 
courts, and acts of Congress and of the State legislatures 
were set aside as null and void and of no force, this exer- 
cise of authority created considerable alarm. Jefferson 
and the States' Rights party were afraid the Supreme 

1 See the case of Neagle. 

2 Cooley, Constitutional Limitations, p. 222, cited by Hinsdale. 



3 2 6 The American Republic 

Court, with this right of overruling Congress and the 
State legislatures, would make itself such a powerful arm 
of the National Government that the people would lose 
control over their laws. It was thought to be dangerous to 
have their legislative will thus thwarted and interfered with. 
Therefore Jefferson and his party urged more effective 
popular control of the courts ; that the judges' office should 
be elective and for a briefer tenure ; that they should not 
be independent of, or that at any rate they should 
not be superior to, the political arm of the Government. 
Jefferson and his followers were not willing that the Su- 
preme Court should exercise this power against State laws, 
as this would be like a national agency vetoing the laws of 
the States. In the Convention that framed the Constitu- 
tion in 1787 it was proposed that a veto on the acts of the 
State legislatures be conferred upon Congress; that any 
State law that Congress deemed inexpedient or unwise 
might be vetoed. This was almost unanimously rejected. 
Later the proposal was modified to allow Congress to 
veto only unconstitutional laws of the States. There 
were serious objections to this also. To veto the law 
of a State, though the law might violate the Federal 
Constitution, would seem like a political act; it would 
have offended State loyalty ; it would have been difficult 
to exercise, since Congress would not be constantly in 
session, and it would certainly have provoked collisions 
between State and Federal authority. Such an emana- 
tion of Federal authority, with power to in- 
tionlfNegative terfere with the liberty and conduct of the State, 
on state Laws would have been a constant irritation. This veto 

Inadvertently . t . , -. 

Conferred in power was consequently denied to Congress, 
the Con- The power having - been so denied, is it to be 

stitution? r ', , . X 1 1 .1 1 

supposed that it had been inadvertently con- 
ferred upon the Supreme Court? When the early decisions 
and interpretations of the Supreme Court brought this 
power unexpectedly into being, Jefferson and the adher- 



The Judiciary 327 

ents of States' rights denied this function to the Court. 
All parties admitted that unconstitutional laws did not bind 
the people. But Jefferson and the Virginia school thought 
it "a very dangerous doctrine to consider the judges as 
the ultimate arbiters of all constitutional questions ; that 
would place us under the despotism of an oligarchy." 
They were unwilling that a national agency ShouldaN 
should be allowed to define the limits of na- tionai Author- 
tional authority, and when the vital question ^ u^te of 
was raised as to whose prerogative it should be National 
to decide upon the constitutionality of laws, 
Jefferson asserted, unfortunately, that "as in all other 
cases of compact among parties having no common judge, 
each party (presumably each State) has an The vir • nia 
equal right to judge for itself as well of infrac- and Kentucky 
tions as of the mode and measure of redress." 1 Resolutions - 
This was a political doctrine set forth by Jefferson to meet 
a political issue, — the issue between State and national 
power. As a political theory it has since been abandoned, 
because an extreme application was logically made of it 
that was calculated to undermine and destroy the Union. 
But it is also abandoned because of the fact that the Su- 
preme Court has attained to the position of an accepted 
and impartial umpire to settle the constitutional cause 
then in dispute, — the limits of power between State and 
Nation. But this power of the Court to declare laws 
unconstitutional was then new and startling, although it 
is now exercised without offence to any party in the 
country, — a tribute to the people's confidence in the 
Supreme Court. In disputes between the States and 
the Central Government, Jefferson recognized Tne"Uiti- 
that there must be somewhere an ultimate ar- ma . te ** hite *" 

in Disputes 

biter, but the final judgment was not to be with between state 
either party to the dispute. ' ' The ultimate ar- and Nation - 
biter is the people of the Union, assembled by their 

1 Kentucky Resolutions. 



328 The American Republic 

deputies in convention at the call of Congress or of two 
thirds of the States. Let them decide to which organ 
they mean to give an authority claimed by two of their 
organs." l But our usage has referred the arbitrament 
of such disputes on constitutional questions to the Supreme 
Court, "a body which is to be deemed not so much a 
third authority in the Government as the living voice of 
the Constitution, the unfolder of the mind of the people 
whose will stands expressed in that supreme instrument." a 
The power in the courts to declare a law unconstitu- 
tional is distinctly American. It excites special attention 
, A „ and comment from European students of our 

In Allowing < r 

such supre- politics, and it is a matter of some amazement 
macytothe t them that Americans permit it. Under 

Judiciary r 

America is no other constitutional government does this 
mque * power rest with the Judiciary. In England, as 

we have seen, Parliament is supreme. 3 There all statutes 
are of equal authority ; all were made by the legislature 
and all can be changed by the legislature. No court 
would presume to set aside an act of Parliament. An 
English political leader may declaim against a proposed 
act of Parliament as "unconstitutional"; but by this he 
merely means that the act is contrary to precedent or 
usage ; or he may mean that it is contrary to certain his- 
toric measures which in England are called con- 
"Constitu- ... , ; _, _, 

tionai stitutional statutes, such as the Magna Charta 

statutes»in (1215), the Petition of Right (1628), the Bill of 
Rights (1688), the Act of Settlement (1701), 
the Acts of Union (1708, 1800), the Reform Bill (1832) — 
important, long-standing measures defining the character 
of the State and according to which all parties are ex- 
pected to conduct the Government. But even these 
great measures may be repealed by act of Parliament. 

1 " Jefferson's Opinions of Marshall and his Court," American Law Re~ 
view, January-February, 1901, and Jeffersonian Cyclopedia, 

2 Bryce, vol. i., p. 357. 3 See pp. 95 et seq. 



The Judiciary 329 

Whatever law Parliament passes, the courts will accept 
and apply, and if it conflicts with any preceding act, no 
matter of what importance, the latest act will stand as 
law. If English judges find an act conflicting with a de- 
cided case, "they prefer the act to the case, as being of 
higher authority. As between two conflicting acts they 
prefer the latter, because it is the last expression of the 
mind of Parliament." If an English judge find two laws 
conflicting he merely looks at the date, and the last law 
prevails. There is no such thing as an invalid act of 
Parliament. That would be like an unconstitutional con- 
stitution. Parliament is the people. It is politically om- 
nipotent and what it does stands in court until the same 
omnipotent power changes it. Even in other European 
countries where there are written constitutions binding 
the legislature, like France, Switzerland, and Germany, 
the courts are not allowed to declare a legislative act in- 
valid. The legislatures are also the judges of the Con- 
stitution, and the courts are bound to enforce the laws 
of the legislature. In Switzerland, whose Federal court 
was instituted in imitation of ours, some points of law 
are reserved for an authority not judicial but political, 
and the Federal legislature is made the sole judge of its 
own powers. 1 

However, our Supreme Court has exercised this power 
to declare a law unconstitutional and to set it aside, and 
in doing so it has described its exercise to be an essen- 
tial characteristic of a government under a written consti- 
tution. The written constitutions of those European 
countries that do not recognize this power in the courts 
have developed on different historical lines than ours. 
They have come into use after the functions of the courts 
and their relation to the legislative powers were fixed by 
usage. In America, under a new Constitution, this import- 
ant power of the Judiciary became a part of our system, 

1 Bryce, vol. i., p. 260. 



33° The American Republic 

partly because first exercised by the Court under the in- 
fluence of great legal minds like Ellsworth and Jay, and 
partly, also, because of the tremendous influence in this 
direction of the great decisions of Chief Justice Marshall. 
The relation between this power and a written Constitu- 
tion was first clearly brought out by Marshall when, in 
his first great decision, he was contending for the right of 
the Court to set aside an act of Congress. His masterly 
legal expression of the principle can never be improved 
upon: 



The original and supreme will organizes the government 
and assigns to different departments their respective powers. 
Marshall ^■ t ma y esta blish certain limits not to be transcended 
Secures this by those departments. Such is the government of 
Power for the the United States> The powe rs of the legislature 

Judiciary in * ° 

Marbury vs. are defined and limited ; that those limits may not 
Madison. ^g m i s taken or forgotten the Constitution is written. 
To what purpose are powers limited and to what purpose is 
that limitation committed to writing if those limits may at any 
time be passed by those intended to be restrained? The dis- 
tinctions between a government of limited and one of unlimited 
powers is abolished if those limits do not confine the persons on 
whom they are imposed. It is a proposition too plain to be 
contested that the Constitution controls any legislative act re- 
pugnant to it ; or that the legislature may not alter the Constitu- 
tion by an ordinary act. The Constitution is either a supreme, 
paramount law, unchangeable by ordinary means, or it is on 
the level of ordinary legislative acts, alterable at the will of the 
legislature. If the former part of the alternative be true then 
a legislative act contrary to the Constitution is not law. If the 
latter part be true, then written constitutions are absurd at- 
tempts on the part of the people to limit a power in its own 
nature illimitable. . . . Certainly all those who have framed 
written constitutions contemplate them as forming the funda- 
mental paramount law of the nation, and consequently the 
theory of every such government must be that an act of the 



The Judiciary 331 

legislature repugnant to the Constitution is void. This theory- 
is essentially attached to a written Constitution and is conse- 
quently to be considered by this Court as one of the funda- 
mental principles of our society. . . . 

"It is emphatically the province and duty of the judicial 
department to. say what the law is. If a law be in opposition 
to the Constitution the Court must either decide the case con- 
formably to the law, disregarding the Constitution; or con- 
formably to the Constitution, disregarding the law; the Court 
must determine which of the conflicting rules governs the case. 
This is of the very essence of the judicial duty. The courts 
cannot close their eyes to the Constitution and see only the 
law. This doctrine would subvert the very foundation of all 
written constitutions. It would be giving to the legislature a 
practical and real omnipotence with the same breath which 
professes to restrict their powers within narrow limits. It is 
prescribing limits and declaring that those limits may be passed 
at pleasure." 1 

To the same effect Chief Justice Chase says: 

" When a case arises for judicial determination and the de- 
cision depends upon the alleged inconsistency of an act with 
the fundamental law, it is the plain duty of the Court to com- 
pare the act with the Constitution and if it cannot be reconciled 
with the latter to give effect to the Constitution rather than to 
the statute. This seems so plain that it is impossible to make 
it plainer by argument. If it be otherwise, the Constitution 
is not the supreme law, and it would be useless to inquire 
whether or not an act of Congress is in pursuance of it. " 3 

This does not mean that the judicial department is 
superior to the legislative, but only that the power of 
the people is superior to both. When an act of Congress 
is declared unconstitutional there is no conflict between 

1 Marbury vs. Madison, Cranch I. 

2 Chief Justice Chase in the case of Hepburn vs. Griswold, 1870, 8 
Wallace, 603 



33 2 The American Republic 

the legislative and the judicial departments. The conflict 
is merely between two kinds of law. The Judiciary must 
say what the law is and decide every case according to 
the supreme law, — the law that is to prevail. 

There are four kinds of law in America : (i) The Federal 
Four Kinds of Constitution. (2) Federal Statutes. (3) State 
American Constitutions. (4) State Statutes. The Fed- 
eral Constitution is the "supreme law/' and 
all the other forms of law must be in harmony therewith. 
If two laws conflict, not the later but the higher prevails; 
the lower authority must give way. The Court in in- 
terpreting the law merely states what the higher law re- 
quires and shows wherein the lower law is inconsistent 
with this. The judges must regulate their decisions by 
the fundamental laws rather than by those that are not 
fundamental. It is the law, not the will of the judges, 
that prevails. The will, or opinion, of the judge should 
have nothing to do with the case. He may think one law 
good and another bad ; as a judge he is bound to allow 
only that one to stand which is in harmony with the Con- 
stitution. If he be guided, not by the law but by his per- 
sonal interests or his political views, he is unfit for his 
place, and a decision inspired by such motives will arouse 
popular displeasure and distrust. If the case were fla- 
grant and odious it might provoke resistance and cause 
the Court to become the object of public and political 
attack. 

The Court has generally sought to avoid politics, and 
it has been strong just in proportion as it has succeeded. 

The Su reme ^ et lt ^ as not arwavs been able to keep itself 
court and above political discussion and free from party 
strife and conflict. Jay's decision in the famous 
case of Chisholm vs. Georgia aroused the adherents of 
States' rights and they demanded the Eleventh Amend- 
ment. The Federalists on the eve of their retirement in 
1800 sought to enlarge the scope of the Judiciary and to 



The Judiciary 333 

provide for some Federalist appointments and John 
Adams's " midnight judges " aroused party criticism and 
opposition. The Jeffersonian Republicans, when they 
came into power, not being able to remove the Federalist 
judges from office nor reduce their compensation, abol- 
ished the courts by repealing the law that created them. 
It being unconstitutional to remove the judge from the 
office, they removed the office from the judge. Marshall's 
nationalizing decisions aroused the opposition of the 
States' Rights school, and the bank decisions of the Court 
aroused local political opposition in some of the States. 
In 1857, tne most serious introduction of the 
Court into the arena of politics occurred by the oppositionTo 
Dred Scott decision. The chief political issue the Dred Scott 
between parties at that time was as to whether 
or not Congress should prohibit slavery in the Territories. 
The Republican party had come into being primarily upon 
the demand that slavery should be prevented by national 
power from entering the Territories. In deciding the 
Dred Scott case and remanding Dred to slavery, which 
the Court might have done merely by the application of 
Missouri law, 1 the Court went aside to give its opinions 
upon the controverted political questions of the day. If 
the opinion of the Court were to be taken as a guide in 
the politics of the country, the Republican party had no 
longer any reason for existence. The Republican leaders, 
Sumner, Stevens, Lincoln, and others, denounced the 
decision as partisan, Lincoln and Seward going so far as 
to accuse the venerable Chief Justice and President 
Buchanan of collusion in the preparation of the decision. 
The Republican party still pursued the political course 
that had been condemned by the Court, and the only in- 
jury done was to the Court itself. The Republican party, 
as a party, denounced the decision as "a dangerous poli- 
tical heresy, revolutionary in its tendency and subversive 

1 See p. 324. 



334 The American Republic 

of the peace and harmony of the country." The Repub- 
licans came into power denouncing the Supreme Court and 
repudiating its decision. 

The "greenback" decisions of the Court have also 
aroused political opposition. Whether Congress should 
And to the issue legal-tender notes to be used as money, 
Greenback as bank-notes are, is a public financial question 
Decisions, to ^ e determined by the political department of 
the Government. Politically the country is greatly divi- 
ded upon this question. The Supreme Court has ruled 
in favor of the constitutional power of Congress to do this. 
The Court at first decided (1870) that this power did not 
rest with Congress. But the Court was soon changed in its 
personnel by the creation of a new justiceship and by the 
filling of a vacancy, and a new case was gotten up. The 
opinion of the two new judges was already known from 
their having passed on similar cases in lower courts, and 
when the new decision came the majority of the judges 
held that Congress, in the exercise of a war power, might 
issue legal-tender notes. Later, in 1884, in still another 
case, the Court held, with only one dissenting voice, that 
this power rests with Congress in time of peace as well 
as in time of war. This decision was thought to be 
dangerous by some whose political and financial opinions 
were offended by it. 1 

Previous to the campaign of 1896, the Populist party 
and many Democratic conventions in the States demanded 
And to the a nat i° na l Income Tax, and, in 1894, a Demo- 
income Tax cratic Congress passed such a tax. The Sup- 
Decisions. reme Court, by a vote of five to four, one 
judge having changed his mind, declared it unconstitu- 
tional and set it aside, thus reversing previous decisions 
on this subject. This offended the Democrats, and in 

1 See George Bancroft's The Constitution Wounded in the House of its 
Friends; James's Legal Tender Decisions ; Papers of the American Eco- 
nomic Association. 



The Judiciary 335 

1896, the Democratic Convention, like the Republicans 
in i860, denounced the decision, saying that it was con- 
trary to ''the uniform decisions of that Court for nearly 
one hundred years," the Court having sustained objections 
to the law "which had been previously overruled by the 
ablest judges who have ever sat on that bench." The 
Democrats also denounced "government by injunction as 
a new and highly dangerous form of oppression by which 
Federal judges, in contempt of the law of the States and 
rights of citizens, become at once legislators, judges, and 
executioners." 

The reversal of the Supreme Court's decision in the 
legal-tender cases revealed the weak point in its organiza- 
tion. It is within the power of Congress and The Weak 
the President to "pack" the Court, if they Point in the 
have a mind to do so. The number of the supreme 
Court can be increased by act of Congress from Court - 

nine to fifteen, or to any other convenient number. If 
Congress and the President are determined to do what 
the Court asserts to be unconstitutional they have only 
to reorganize the Court by increasing the membership 
and by filling up the Court with judges who will give the 
desired opinion. If the opinions of the President's new 
appointees to the Court can be known in advance, almost 
any case that it is desired to have reversed could be re- 
versed in this way. This would of course impair the use- 
fulness of the Court, and while this manner of controlling 
it by political legislation is possible it is hardly probable. 
The respect of the Americans for law and for this their 
highest legal tribunal may be depended upon to restrain 
action in this direction. There should be some way by 
which the sovereign will of the people can work out its 
purposes, even against the obstacles of court decisions. 
The Court must be, in the last resort, amenable to the 
will of the people. 

As national judges may declare a State law unconstitu- 



33 6 The American Republic 

tional, so may a State judge declare a national law un- 
constitutional. He may be overruled in this decision by 
a national court on appeal, but if a State cir- 

A State Judge . . . . - - 

may Set Aside curt judge, or even a justice of the peace, finds 
a National a national law in his way in the trial of a case 

Law. .... 

and if, in his judgment, the law is unconstitu- 
tional, it is his right, or rather his duty, to say so. If 
he does not judge aright there is a chance for a higher 
court to say so. 

Although this practice of declaring acts unconstitu- 
tional is described by the jurists as merely revealing and 
«« Court-made interpreting the law, and not making the law, 
Law." y et j-hg p rac tice makes possible a good deal of 

"court-made law," — law that is made, or prevented, by 
decisions and constructions contrary to the legislative in- 
tention. In deciding what law we shall have and in the 
determination of public policies, this practice seems very 
Can the much like establishing the supremacy of the 

Judiciary COUrtS Over the legislature. In l8Q5, for in- 

Subordinate 1 r- /- r tip • -i 1 « 

the Legis- stance, the Supreme Court of Illinois declared 
lature? trie eight-hour law of that State unconstitu- 

tional on the ground that the right to make contracts is 
an inherent and inalienable right, and this eight-hour law 
abridged this right, restricting the fundamental right of 
the citizen to dispose of his time as he pleased. A New 
York court has lately held that such a law violates the 
freedom of contract guaranteed by the Constitution. 
The progressive inheritance tax of Ohio, by which it was 
sought to place a fair share of public burdens upon the 
receivers of great wealth, was declared to be unconstitu- 
tional by the Supreme Court of that State, on the ground 
that, by a provision of the Constitution of Ohio, citizens 
of that State may be taxed only in proportion to their 
property. If the English courts had possessed such 
powers every one of the progressive labor laws of that 
country by which the hours of labor for women and 



The Judiciary 337 

children have been shortened might have been over- 
thrown, and the Progressive Income Tax law might have 
met the same fate. 

" These decisions illustrate the fact that the American sys- 
tem of the supremacy of the courts is less democratic in 
practice as well as in theory than the English system of the 
supremacy of Parliament. Parliamentary government makes 
possible more legislation in behalf of the common people than 
government by the courts. The contrast between the English 
and American systems brings out strongly two points: first, 
that written constitutions instead of being a safeguard for the 
common people may be a safeguard to vested interests; and 
secondly, the fact that in England Parliament is supreme and 
can do almost anything facilitates the passage of progressive laws 
to an extent that is impossible where courts are supreme." l 

The Court never goes to meet a question. It awaits 
the question to come before it by a suit at law. Smith 
sues Brown in Texas, and after the decisions of 
lower courts in that State and after the law's Arise and 
further delays, the case comes up on appeal to Decisions 

, _ _ x 1 ■ , - , are Secured. 

the Supreme Court. It is only then that the 
Supreme Court can notice the questions involved, though 
they may have been discussed in Congress and in political 
circles for years before. The Justices will not express an 
opinion upon the constitutionality of a law in advance of 
a case arising under it, nor upon any proposed measure. 
They will not advise the Executive as to the constitu- 
tionality of a law. In 1793, Washington requested the 
opinion of the Court on the construction of the French 
treaties of 1778. The Justices refused to comply. In 
some States the constitution requires such an opinion 
from the court as a speedy means of determining the 
status of the law. In such cases an opinion on a pro- 
posed law becomes a constitutional duty. In the absence 

1 Outlook, April 6, 1895. 



33 8 The American Republic 

of such a means of coming by an authoritative decision, 
the Executive must consult his Attorney-General. A 
Justice while ruling upon a law is, of course, in no way 
bound, not even by the law of consistency, to decide in 
harmony with an opinion he may previously have ex- 
pressed while acting in another capacity. In 1862, while 
Chief Justice Chase was Secretary of the Treasury he 
urged the passage of the Legal Tender Act and he ex- 
pressed the opinion that it was constitutional. In 1870, 
while acting as Chief Justice, he rendered a decision 
against the constitutionality of this law. 

The great function of the Supreme Court in the de- 
velopment of our Government has been the interpretation 
and construction of the Constitution. 

The Constitution has changed and developed in three 
ways: I. By amendments ; 2. By interpretation and con- 
TheCon- struction ; 3. By usage, 
stitution Amendments to the Constitution may be 

Develops : 

1. By Amend- made in two ways : 

ment - (1) Congress may by a two-thirds vote of 

each house prepare and propose an amendment. If 
this be ratified by the legislatures of three fourths of 
the States it becomes a part of the Constitution. Fifteen 
amendments have been obtained in this way. Of these, 
however, ten were obtained at the beginning, urged al- 
most as a condition precedent to the adoption of the 
Constitution, and these ten may be regarded therefore as 
a part of the original instrument, while the last three 
amendments were approved by a sufficient number of 
States under very extraordinary political circumstances. 
In more than one hundred years only two amendments 
have been added under ordinary conditions. Growth by 
the process of amendment is very difficult and laborious. 1 
(2) The other method of amendment is that Congress, 
upon the application of the legislatures of two thirds of 

1 See p. 347. 



The Judiciary 339 

the States, shall call a Convention for proposing amend- 
ments, these proposals to be valid when ratified by the 
legislatures of three fourths of the States. No amend- 
ment has ever been obtained by this method. 

While the Constitution has developed considerably by 
amendment, it has been developed much more by con- 
struction and interpretation and especially by 
construction. Interpretation and construction pretationand 
are frequently used interchangeably, but a dis- Construction - 
tinction between them should be drawn. Interpretation 
has to do with the meaning of the written text. It is the 
art of finding out the true sense of any form of words ; it 
applies to questions as to the meaning of a term or phrase, 
with the purpose of making clear and understood any 
passage that was before ambiguous and uncertain. A 
case arises, and it is claimed that the Constitution says 
something which bears or is supposed to bear upon the 
matter. What do the words in question mean? 

/» i -i 1 1 1 - -r-i Difference 

And do they bear upon the case? These are between con- 
questions of Interpretation. Construction has stmctionand 

* 1 1 t Interpretation. 

to do with the Constitution as a whole. It 
seeks and applies the probable aim and purpose of the 
whole document, determining what powers result from it 
or are implied in it. Construction compares one part of 
the Constitution with all other parts and it takes cog- 
nizance of subjects that lie beyond the direct expressions 
of the text, — as, for example, the nature and character of 
civil government and of sovereignty, and the evidences 
from history and contemporary expression as to the pur- 
poses in the making of the Constitution. By liberal or 
broad construction, the Constitution has been greatly 
developed and the limits of power have been more and 
more closely and clearly defined. It is upon Construction 
that the great political and constitutional differences in 
our history have arisen. Interpretation has been chiefly 
a matter of law ; Construction has been largely a matter 



34° The American Republic 

of politics. By this it is meant that the political depart- 
ments of the Government have also construed the Con- 
stitution. Construction has had to do with a field that 
has offered a fundamental issue between political parties 
in America, the issue between national powers and States' 
rights. But the permanent and effectual construction 
which has been more or less accepted by all parties as 
determining the scope of constitutional powers and the 
character of the Government is the construction of the 
Supreme Court. This construction has come as from a 
judicial and impartial arbiter, but it has had very im- 
portant political bearing. 

Marshall 's principles of Construction as to the extent of 
national powers may be accepted as final. His two 
„ . „, canons of construction are: 

Marshall's 

Principles of i. Every power claimed by the National 
onstruction. G overnmen t must be affirmatively shown to 
have been granted. There is no presumption in favor of 
such power. The burden of proof rests with those who 
assert its existence. Something in the Constitution must 
be pointed out that expressly or impliedly confers this 
power. 

2. When once the grant of power is established the 
powers will be construed broadly. When it is shown 
that the end is legitimate, that the proposed power is 
constitutional, any reasonable means may be allowed. 
The Court will be strict in determining the existence of a 
power, but liberal in applying the power if found to exist. 
When the people have conferred a power they have con- 
ferred a wide discretion as to its use. 

During the Civil War, President Lincoln's construction 
of his powers rested upon a higher law than 
Construction tne mere words of the Constitution. He held 
of His War that his oath to preserve the Constitution im- 
posed upon him the duty of preserving the 
nation of which the Constitution was but the organic 



The Judiciary 341 

law. It was not possible to lose the nation and yet 
preserve the Constitution. "So a measure, otherwise 
unconstitutional, may become lawful by becoming indis- 
pensable to the preservation of the Constitution through 
the preservation of the nation." Any government, in 
order to preserve its own life, will construe its powers in 
such a way as to justify its overstepping its ordinary 
limitations in periods of extraordinary danger. 

"The creation of a system of United Courts, extending 
throughout the States, and empowered to define the boundaries 
of Federal authority, and to enforce its decisions by Federal 
power supplied the element needed to bring order out of 
chaos. Without it the Constitution might easily have proved 
a more disheartening and complete failure than the Articles of 
Confederation." * 

Probably no institution in our history has done more to 
strengthen and sustain American nationality than has the 
Supreme Court. It has obtained the respect of all nations, 
and usually it has possessed the confidence of all parties. 
Its dignity, ability, and impartial fairness have com- 
mended it to the people. 

'Johnston's History of American Politics, cited by Hinsdale, Civil 
Government. 

REFERENCES 

1. Bryce, American Commonwealth. 

2. WlLLOUGHBY, The Supreme Court. 

3. Cooley, Constitutional Law and Constitutional Limitations. 

4. Hinsdale, Civil Government. 

5. LALOR, Cyclopedia of Political Science and United States History ; arti- 

cle on "The Judiciary" in United States History by Professor 
Johnston. 

6. History of the United States, McMaster, Von Holst, Schouler, 

Rhodes. 



CHAPTER VII 

THE STATES AND THEIR GOVERNMENT 

IN the American system of government the State is as 
important as the Nation. So far as the citizen's 
personal interests are concerned, in all the affairs that 
directly touch his civic life, the State is even more im- 
Reiativeim- portant than the Nation. While the State 
portance of does not excite so much interest, nor occupy 

the State in , . x J 

the Life of so large a share of the people s attention as 
the citizen, does the Nation ; while the affairs of the States, 
their constitutions, their officers, and the functions of these 
officers are not so well known, yet in the great multitude 
of affairs in which civil and criminal laws are of concern 
to the citizen, the State may touch the citizen a hundred 
times where the Nation touches him once. It is the State 
that deals with all the ordinary relations of citizens to one 
another. Mr. Bryce says : 

" An American may, through a long life, never be reminded 
of the Federal Government, except when he votes at presi- 
state dential and congressional elections, buys a package 

Functions. of tobacco bearing the Government stamp, lodges 
Bryce - a complaint against the post office, and opens his 

trunk for a custom house officer on a pier at New York when 
he returns from a tour in Europe. His direct taxes are paid 
to officials acting under State laws. The State, or a local 
authority constituted by State statutes, registers his birth, ap- 
points his guardian, pays for his schooling, gives him a share 
in the estate of his father deceased, licenses him when he 

342 



The States and their Government 343 

enters a trade, marries him, divorces him, entertains civil 
actions against him, declares him a bankrupt, and hangs him 
for murder. The police that guard his house, the local boards 
that look after the poor, control highways, impose water rates, 
manage schools, — all these derive their legal powers from the 
State alone. In comparison with such a number of functions 
the Federal Government is but a department for foreign 
affairs." 1 

Thus it is seen that in dividing the governmental func- 
tions between State and Nation while the Nation gets the 
highest the State gets the most ; so the balance is pretty 
well preserved. Each State has a constitution of its own. 
This constitution in every case provides for an Executive, 
or Governor, a Legislature of two Houses, a Judiciary 
with a system of civil and criminal procedure. Each 
provides a system of local self-government in counties, 
cities, townships, and school districts, with a system of 
State and local taxation. 

The constitutions of the States were mainly derived 
from the same source. The constitutions of Massachusetts 
and Virginia furnished models for many of the state Con . 
Western States. The original States derived stitutions 

■, . . . , , 1 i t^ i • 1 Came from 

their constitutions either from old English colonial 
statutes and principles of law, or from the charters, 
original charters to the Colonies. The colonial charter 
was nothing more nor less than a constitution. It was 
"an instrument of government established by a superior 
authority creating subordinate law-making and adminis- 
trative bodies that could not transcend the powers laid 
down in the instrument creating them." When the 
Colony became an independent State, the supreme power 
that had abided in King and Parliament competent to 
create a colonial constitution and impose limits on gov- 
ernmental agencies passed to the people of the inde- 
pendent State. The legislature, executive, and courts 

1 American Commonwealth, i., 425, 426. 



344 The American Republic 

of the State remained limited as they had been, and the 
people of the Colony in their primary capacity became 
the sovereign constitution-making power in the State. 1 

The citizens within the limits of the old Colony were 
the body politic. They were the State. This body 
politic had absolute and supreme authority over the 
citizen within its bounds, in all matters in respect to which 
he was a subject of government. The new State had as 
it now retains, absolute control over all local political 
bodies within its limits, its counties, cities, and town- 
ships. It had, and retains, power to remodel city charters 
and revise city governments; it may reorganize or dis- 
organize its counties and townships, and there is no appeal 
to any higher authority against its action. In the matter 
. . of limitations on legislative power, the funda- 

Constitutional fe r ' 

Limitations on mental difference between the United States 
Legislative Constitution and the State constitution lies in 

Power in 

state and this : The States voluntarily deprive them-, 
selves of and relinquish to the national legis- 
lature the powers which that body may exercise; all 
other powers are retained to the States. The people of 
the States have conferred certain legislative powers on 
the national Congress, denying these to themselves, but 
retaining all others. But in forming their State con- 
stitution the people of a State do not confer legislative 
power on their legislature. From the nature of the 
sovereign State all the residuary mass of powers abides in 
the legislature, unless denied. The people restrict their 
State legislature in certain respects, including all the re- 
strictions of the United States Constitution, but in all 
other respects in which government is competent to act, 
the legislature of a State is free, sovereign, and supreme. 
He who asserts the power of a State legislature to pass 
an act or establish an institution has not to prove it ; but 
he who denies the power must cite the clause of the Con- 

1 See Bryce, vol. i., p. 429. 



The States and their Government 345 

stitution forbidding it. Barring the specified restrictions 
of the State and national constitutions the power of a 
State legislature is like that of the British Parliament : it 
is plenary and unlimited, and it may legislate for all 
purposes of civil government and do all things that inde- 
pendent governments may do. In framing a State con- 
stitution the people commit to the legislature the whole 
law-making powers of the State which they do not ex- 
pressly or impliedly withhold. 1 Of course, all 

, - , „ ■ . The Depart- 

departments of the State government, legisla- ments of 
tive, executive, and judicial, are limited by the Government 

.... J are Separate 

State constitution to their respective spheres and Re- 
and cannot infringe the one upon the other. stncted. 

The rights of the States are defined partly by their 
reserved powers, partly by the powers withheld from 
them by the United States Constitution, partly states* Rights 
by the powers conferred on the National Gov- Defined, 
ernment, partly by the judicial decisions and interpreta- 
tions of the courts, and partly by the accepted facts of 
our national history. Whatever these rights may have 
included in the past, it is certain that they do not include 
the right of nullification and secession. Nullification 
was settled by Andrew Jackson ; and that a State may 
not secede was settled as one of the prime results of the 
Civil War. No State may attempt to coerce another, 
nor establish diplomatic relations with another State, nor 
in any way deal with nor act upon another. These 
powers touching inter-State and foreign relations are 
conferred on the General Government. 

From what has been said, it will be understood that 
the State constitutions do not derive their authority from 
Congress. The States do not receive their powers from 
the General Government. In Canada the Provinces have 
only those powers that are conferred upon them by the 
Constitution of the Dominion, while all other powers are 

1 See Cooley's Constitutional Limitations , p. 107 ; Bryce, vol. i., p. 445. 



34 6 The American Republic 

reserved to the Dominion Parliament. 1 In the States it 

is just the other way. The powers expressed in the State 

constitutions are original and inherent, not 

State Powers f , _ *\ t . ' , 

are Original conferred. Congress does not determine the 
and inherent, terms of these instruments. Congress may in- 

Not Conferred. b J 

fluence the character of a State constitution by 
imposing such conditions upon the admission of a State 
as will lead it to conform its constitution to certain re- 
quirements, as was proposed in the case of Missouri, in 
1820. But it is doubted whether Congress possesses con- 
stitutional authority to do this, and it is a power that is 
rarely exercised. If conditions were imposed upon an in- 
coming State and the State should subsequently amend 
its constitution in order to have its own way, Congress 
would have no remedy against such action by the State, 
except to deny to the people of the State representation 
in the two Houses of Congress. The State would still 
remain in the Union in the exercise of local self-govern- 
ment in the control of all its own domestic laws and in- 
stitutions, like the other States. 

State constitutions are usually adopted by State con- 
ventions elected for that purpose. The constitution after 
_ _ 4 being framed by the convention is then, as a 

How State *> J 9 

Constitutions rule, submitted to the people of the State for 
are Made. ratification or rejection. If the constitution is 
rejected at the polls a new constitution is devised by the 
convention ; if ratified, the constitution is proclaimed by 
the governor, or legislature, appointed to perform that 
function. Sometimes a new constitution is adopted in a 
State merely by the constitutional convention without 
submitting it to the people. This is a departure from the 
American constitutional usage, and is resorted to usually 
from fear that the voters under the old constitution will 
not approve certain proposed features in the new. Under 
this practice the convention is looked upon as holding 

1 British North America Act, 1867. 



The States and their Government 347 

within itself the sovereign and supreme will of the people. 
This method of constitution-making is resorted to more 
in the South than elsewhere as a more convenient means 
of imposing suffrage restrictions. It is, of course, not so 
democratic as the method of popular ratification. 

In the process of amending a State constitution the 
legislature takes the initiative. The amendment must be 
made according to the provisions of the exist- . 
ing constitution. These will probably require state 

that the proposed amendment shall pass the Constitutions - 
legislature by a two-thirds majority, or by a majority in 
two successive legislatures, and then be submitted to the 
people for approval. Or, the legislature may call a Con- 
stitutional Convention, or ask the people to decide upon 
the desirability of such a convention for the purpose of 
revising the whole constitution or of making a new one. 
When a constitutional amendment is submitted A 

Amendments 

to the people for ratification, however desirable are Difficult 
the amendment may be, it is likely to fail of t0 Secure * 
adoption from the indifference and apathy of the voters. 
If the amendment be submitted at a special election the 
majority of the voters may not care enough about the 
matter to come to the polls. If submitted at a general 
election, many voters will be likely to vote for State and 
National officers while failing to vote on the amendments ; 
and as the constitution will generally require a majority 
of all the votes cast to carry an amendment, the amend- 
ment may fail merely from the failure of the voters to ex- 
press themselves upon it. 1 

Constitution-making or amending, by popular vote, is 
one of the chief forms of the referendum in America. 
The making of local-option laws on the liquor Formsof the 
traffic, and money grants by taxation to aid Referendum 
in building railroads, are other forms of the 

1 See The Nation, Jan. io, 1902, for failure of Referendum on Amend- 
ments. 



348 The American Republic 

referendum. By the referendum is meant the provision 
that laws must be referred to the people before they 
can be binding. The referendum is generally associated 
with the imperative mandate. This provides that when a 
certain proportion of the people have petitioned for the 
enactment of a law, this shall serve as a mandate to the 
legislature to submit the act to a popular vote. Of course 
only questions relating to general public policy, and not 
statutory matter touching private and local law, would be 
so submitted. 

The objection to the referendum is that the people will 
be too frequently disturbed ; that they will not be inter- 
ested in voting on the proposed laws, as experience has 
shown in the efforts to amend State constitutions. 1 

Though a State legislature might permit a referendum 
for its guidance, the legislature itself would have to enact 
the law unless the constitution of the State be first so 
amended as to provide for law-making by referendum. It 
is a maxim of law that delegated power may not be dele- 
gated. When the supreme power — the people — have 
vested law-making in the legislature, it must remain there 
until the people determine otherwise by a new constitu- 
tion. "The power to whom this duty has been entrusted 
cannot relieve itself of responsibility by choosing other 
agencies upon whom the power shall be devolved/ ' 3 

The State legislature is bicameral in form. Both 
The state Houses are chosen by popular vote, by the 
Legislature. sam e voters, but in electoral districts of differ- 
ent sizes. 

Senatorial districts are larger than Representative dis- 
tricts ; consequently there are fewer Senators. 

The senatorial term is generally longer. The usual 
term of a Representative is two years; the senatorial 
term in most of the States is for four years. The State 

1 See The Nation, Jan. 10, 1902. 

* Cooley, Constitutional Limitations, p. 141. 



The States and their Government 349 

Senate, like the national Senate, is a permanent body; 
half its number are old members, or "hold-over Sena- 
tors," who sit in two consecutive legislatures. The 
eligible age of the Senators is usually higher than that of 
the Representatives. 

The State Senators and Representatives are usually 
apportioned among the several counties of the State ac- 
cording to population, and the electoral dis- Apportion- 
tricts are expected to be equal to the number ment of 

of inhabitants. One of the chief abuses of the e *R e presen- 
" gerrymander " is the making of unequal dis- tatives. 

tricts for partisan purposes. In the apportionment the 
counties are generally recognized as the electoral units, 
and many State constitutions forbid that counties should 
be divided in making up electoral districts. In the New 
England States the towns or townships were generally 
recognized as the electoral units. In Connecticut and in 
other of the older States provision was made for the 
representation of towns rather than of numbers of people. 
New Haven, with one hundred thousand population, had 
no more representation in the Legislature of Connecticut 
than a country town of five hundred people. The recent 
constitution of that State has remedied this defect. 

Representatives and Senators are usually required to 
live in the districts which they represent. This restriction 
tends to prevent the securing of the best ability District Resi . 
in the State for service in the legislature. The dence is 
restriction rests on custom rather than on law, 
but it is all the harder to overcome for that reason. It 
has been suggested, as a means of meeting this difficulty, 
that fifteen or twenty Senators be elected from the State 
at large, to be voted for by all the voters of the State. 
This, it is thought, would lead to the choice of men of 
ability and State reputation. 

The members in the State legislatures vary from fifty- 
two in the whole Legislature of Delaware (nine of these 



35° The American Republic 

being in the Senate), to 321 in the House of Represen- 
tatives in New Hampshire. The pay of members varies 
from one dollar per day in Rhode Island to fifteen hun- 
dred dollars a year in New York. The pay is usually 
a per diem of from four dollars to eight dollars a day and 
mileage. 

Suffrage is a subject for State regulation. Who may 
vote for President or Congressman depends upon the 
Suffra e is * aws °^ *^e State. Whoever is entitled by the 
Regulated by constitution and laws of the State to vote for 
members of the most numerous branch of the 
State legislature may vote in national elections. 1 Voting 
is not a right of citizenship. It is a privilege conferred 
by the State on those whom it considers fit. Voters and 
citizens are not identical. Many citizens are not voters; 
many voters are not citizens. Women are usually not 
voters; they are, of course, citizens. While the States 
cannot make aliens into citizens, they may, and in some 
cases do, make voters out of them. In Indiana a for- 
eigner is required to live but one year in the State to be- 
come a voter; he must live five years in the United States 
in order to become a naturalized citizen. 

Though the regulation of suffrage is left to the States 
the qualifications are generally uniform. Manhood suf- 
frage prevails, as a rule, throughout all the States. Some 
restrictions have been imposed lately in the Southern 
Educational States by requiring certain educational and tax- 
Tests, paying tests. This is done for the purpose of 
excluding colored voters. The State constitution may 
require that before one may vote he must be able to read 
the Constitution or understand a section of it when it is 
read to him. Election boards composed of white men may 
The "Grand- decide that illiterate whites understand the 
father clause." Constitution while illiterate blacks do not. A 
"grandfather clause" also may admit illiterate whites 

1 United States Constitution, Art. i., Sec. 2. 



The States and their Government 351 

while excluding illiterate blacks, by providing that any 
one whose father or grandfather was a citizen of the State 
prior to 1867 (the date of the Fourteenth Amendment) 
may be relieved from the suffrage tests. 

Four of the States * admit women to the general suf- 
frage, while several other States allow women to vote on 
several local matters pertaining to taxation and education. 

Formerly, property qualifications were common in most 
of the States. The growth of the democratic spirit has 
led to the abandonment of all such qualifications. The 
small poll-tax, or nominal property tax now required in 
some of the States does not deter any man twenty-one 
years of age, however poor, from casting his ballot. The 
tax is easily taken care of by friends or interested party 
managers. 

The uniformity in suffrage qualifications in the States 
is due to the general democratic spirit of equality prevail- 
ing throughout the Union, and partly to the Suffrage and 
requirements of the Fourteenth Amendment to the Fourteenth 
the Constitution of the United States. This *»«*»"*■ 
Amendment provides that representatives shall be appor- 
tioned among the several States according to their re- 
spective numbers, counting the whole number of persons 
in each State. But when the right to vote at any elec- 
tion for President or Vice-President or Representatives 
in Congress is 

"denied to any of the male inhabitants in any State, being 
twenty-one years of age and citizens of the United States or 
in any way abridged except for participation in rebellion, or 
other crime, the basis of representation therein shall be re- 
duced in the proportion which the number of such male 
citizens shall bear to the whole number of male citizens 
twenty-one years of age in such State." 

This is mandatory and requires that the State's repre- 
sentation at Washington "shall be reduced " if its voters 

1 Wyoming, Colorado, Idaho, and Utah. 



35 2 The American Republic 

are disfranchised for other reasons than crime. This holds 
out an inducement to the State to preserve a wide suffrage. 

The executive department of a State consists of the 
Governor and minor administrative officers, such as the 
The state Lieutenant-Governor, the Secretary of State, 
Executive. trie Auditor of State, the Treasurer of State, 
the Attorney-General, the Superintendent of Public In- 
struction or the Commissioner of Education, Tax and 
Benevolent Boards, and other administrative agencies 
provided for by law and appointed by the Governor, or 
elected by the legislature. 

The subordinate State officers, like the Secretary and 
Treasurer of State, are elected and hold their offices in- 
The Minor dependent of the Governor. They are in no 
Executive wav related to him like a Cabinet or council of 
Not Responsi- advisers. Their work is not political and their 
bie to the . offices do not enable them to determine the 
They are Not public policy of the State. The legislature de- 
a Cabinet. termines the policy of the State, while each 
executive officer has his duties defined by law and each is 
directly responsible to the people. The governors are 
now elected by a direct vote of the people, while formerly 
they were frequently elected by the legislature. They 
hold office from one to four years and receive salaries 
ranging from one thousand dollars in Michigan to ten 
thousand dollars in New York. 

It is the Governor's duty to see that the laws of the 
State are faithfully executed ; to convene the legislature 
Duties of the when occasion requires; to recommend desir- 
Governor. a foi e legislation ; to make such appointments 
as the constitution and the laws allow him ; to act as 
commander of the State militia, and in this capacity to 
repel invasion and suppress riot, rebellion, and insurrec- 
tion ; to grant reprieves and pardons ; to issue writs for 
the election of Congressmen, and to secure by extradition 
criminals escaping to other States. 



The States and their Government 353. 

The Governors in all the States but four have the veto 
power. In some of the States this may be overridden 
by a bare majority of the legislature, but even Executive 
in such States the Governor's veto may cause Vet0 - 

the delay and public exposure of a bad measure and may 
even defeat it entirely upon its reconsideration. The 
Governor's reputation depends upon his use of the veto. 

The Governor is not a figure of great political impor- 
tance, by no means as important as in former days. John 
Jay resigned the Chief Justiceship of the United p Utic . - 
States to become Governor of the State of New portance of 
York, and frequently the governors of the old the Governor - 
commonwealths looked upon their office as equal in rank 
to that of the President. The Governor represents the 
official dignity of the State on state occasions, and graces 
public assemblies by his presence and by a suitable ad- 
dress. His patronage is not extensive and his office rep- 
represents prestige rather than power. This holds good 
in ordinary times when the Governor's duties are not 
important, but in times of strikes and riots the character 
of the Governor becomes of vital concern, and his firm- 
ness, wisdom, and executive energy may be most effective 
in defending and promoting the welfare of the State. To 
be the governor of one of the leading States sometimes 
places a man in line for political promotion and may lead 
to his selection for a Cabinet portfolio or to his nomina- 
tion for the Presidency or Vice-Presidency. 

The Lieutenant-Governor corresponds to the Vice- 
President. In most of the States he is ex officio the pre- 
siding officer of the State Senate and in case of Lieutenant- 
the death or disability of the Governor, the Lieu- Governor. 
tenant-Governor succeeds to the governorship. Otherwise 
the Lieutenant-Governor has no functions to perform. 

The impeaching power is provided for in the State con- 
stitutions as in that of the United States, and it usually 
operates after the same fashion. 



354 The American Republic 

The removing power is vested either in the Governor 
or legislature, or in the Governor upon an address of the 
two Houses of the legislature. 

Each State has its judicial system. There are local 
County and Circuit Courts and a final Court of Appeals 
The state or Supreme Court. There is in some States 
judiciary. an intermediate Appellate Court for the dis- 
position of certain cases on appeal. In earlier days the 
judges were generally appointive by the governors. 
Through the growth of the democratic spirit, notable in 
America from 1815 to i860, the constitutions formed in 
that period took the appointment of the judges from the 
governors and made the judicial office elective by the 
people. The judges are now elective in thirty-one 
States. 

The judicial tenure in the States has also become more 
democratic. Formerly the tenure was for life or during 
judicial good behavior. Judges could be removed only 

Tenures. when condemned on impeachment, or upon 
an address requesting their removal presented by both 
Houses of the legislature. It is in this latter way that the 
judges are still removable in a majority of the American 
States. This also is the process of judicial removal in 
England. In the States a two-thirds vote of the two 
Houses is usually required. The terms of the judges now 
vary in the States from twenty-one years in Pennsylvania 
to two years in Vermont, averaging about eight years. 

The judges' salaries are usually low, on an average 
about four thousand or five thousand dollars. They 
judicial range from $2000 in the State of Oregon to 
salaries. $17,500 in the State of New York. Such low 
pay will make it impossible to secure for the bench first- 
rate legal ability, or it will tempt the judge to seek to 
supplement his salary by other and questionable means. 
It is frequently asserted that popular elections, short 
terms, and low salaries have had a very positive tendency 









The States and their Government 355 

to lower the character of the State judiciary ; that popular 
elections have thrown the choice of judges into the hands 
of political wire-pullers, and have led to the use 
of judicial places for party purposes ; that short Popuia^Eiec- 
terms compel the judge to keep on good terms tion and Short 
with the political manipulators, and he can- 
not, therefore, administer the law without fear or favor ; 
that small salaries prevent leading lawyers from offering 
themselves for judicial office, when the office promises not 
one tenth the pay that they can make in their practice ; 
and that the consequence of all these influences is that 
the judges in many States are much inferior to the 
lawyers who practise before them. 

But it is generally not true that the most astute and 
money-making lawyer would make the best judge, and 
in most of the States good men can be induced to take 
the judicial offices at a fair salary. Upon their transfer 
to the bench they administer their office without reference 
to politics, and they prove to be judges incorruptible and 
above reproach. No doubt political influences do in a 
measure affect the conduct of some of the judges of the 
county and circuit courts, but this detracts from rather 
than adds to their popularity with the people, and if the 
fact be generally recognized it may decrease rather than 
increase the judge's chance for renomination and re- 
election. Popular election, too, may have its compen- 
sating advantages, in restraining autocratic and political 
conduct on the part of the judge. 

The State courts have the same power to declare acts 
unconstitutional, and therefore null and void, that the 
national courts have. State judges are sworn 
to support both the Constitution of the State Pass on the 
and of the United States and they may declare Constitution- 

r ^ • 1 r. 1 J alit y of Acts 

an act of Congress unconstitutional. Such de- 
cision is not final, of course, for it is subject to review in 
a national court. It may be reversed, but it may also be 



35 6 The American Republic 

confirmed. It may be not only the right but the duty of 
a State judge to declare a congressional act unconstitu- 
tional that may be called into litigation before him. It is, 
however, the special function of a State court to expound 
the State constitution, and if an act of the State legis- 
lature be not in harmony therewith it is the court's duty 
so to declare. As in the United States courts, the State 
judges pass on constitutional questions only as cases arise 
in suits at law. This may cause great delay in determin- 
ing officially the validity of a statute, and some States, in 
order to meet this difficulty, require the Supreme Courts 
to deliver an opinion on the constitutionality of an act 
immediately upon its passage, or as a condition to its 
passage. Such opinions, however, cannot have the same 
weight nor binding effect as a final official decision fol- 
lowing litigation, and a judge may not be bound in his 
final decision on a case by his previously expressed opin- 
ions. In the later decision of the case the judge may be 
influenced by the practical working of the act in experi- 
ence and by the able arguments of capable attorneys in 
the case in which the act is involved. 

Citizenship, like suffrage, is chiefly a State matter. 
There was no clear nor generally accepted definition of 
citizenship a American citizenship until after the Civil War, 
state Matter, w hen the Fourteenth Amendment declared : 

Subject to the <</f77 7 7 . . . . TT . , 

Fourteenth All per sons born or naturalized in the United 
Amendment. States, and subject to t lie jurisdiction thereof, are 
citizens of the United States and of the State wherein they 
reside. 

This amendment recognizes two separate citizenships : 
a citizenship of the States and a citizenship of the United 
States, and it makes State citizenship derivative from 
national citizenship. The prevailing view formerly was 
that national citizenship was dependent on and derived 
from State citizenship ; that one could become a citizen 
of the United States only as a consequence of being a 



The States and their Government 357 

citizen of some State or Territory of the Union; that 
State citizenship was the primary fact while National 
citizenship was only secondary and consequential. Cal- 
houn gave clear expression to this view : 

"A citizen at large, one whose citizenship extends to the 
entire geographical limits of the country, without having a 
local citizenship in some State or Territory, a sort of citizen 
of the world, would be a nondescript; — not an individual of 
such description can be found in the whole mass of our popu- 
lation. Every citizen is a citizen of some State or Territory, 
and as such, under an express provision of the Constitution, is 
entitled to all the privileges and immunities of citizens in the 
several States; and it is in this and in no other sense that we 
are citizens of the United States." * 

This was the State rights's view. It received judicial sanc- 
tion in the Dred Scott decision. Each citizenship, State 
and national, had its separate privileges and 

... The Dred 

immunities. While all national citizens must Scott Decision 
first be State citizens it did not follow accord- on Citizen. 

ship. 

ing to this view that State citizenship neces- 
sarily carried with it the privileges of national citizenship. 
This was one of the main points at issue in the Dred Scott 
case. Was Dred Scott a citizen of the United States, 
entitled to sue in the national courts? Could one of 
African descent and slave birth become a citizen of the 
United States merely by his being made a MayaState 
citizen of one of the States? The Supreme Ma ke a Man a 
Court in the Dred Scott case denied the pnvi-^^^J 
leges of national citizenship to negroes. The 
fact that they had been made citizens in some of the 
States did not work their national citizenship. Chief 
Justice Taney asserted that the rights of citizenship 
which a State may confer within its own limits should 
not be confounded with the rights of citizenship as a 

Calhoun's speech on " The Force Bill," Works, vol. ii., p. 242. 



35 8 The American Republic 

member of the Union. One may have all the rights and 
privileges of a citizen of a State and yet not be entitled 
to the rights and privileges of a citizen in any other State, 
or to the rights of United States citizenship. Each State 
may confer its civic rights and privileges upon an alien or 
on any one it thinks proper, but these rights will be re- 
stricted to the State which gave them. No State since 
the adoption of the Constitution can, by naturalizing an 
alien, invest him with the rights and privileges of Federal 
citizenship. The black man could not be made a citizen 
of the United States through the action of a single or of 
several States ; it had to be done, if done at all, through 
the Constitution. The dissenting opinion of Justice Cur- 
tis agreed in the view that each State was 
sent in the f ree to determine for itself what persons born 
Dred Scott or naturalized within its limits should be citi- 

Case 

zens of such State. It differed in asserting 
that State citizenship resulted in National citizenship. If 
the negro were made a citizen in any State he thereby 
became a citizen of the nation with all the privileges of 
Federal citizenship. Both Taney and Curtis held that 
citizenship of the United States was dependent upon and 
proceeded from citizenship of the State; the difference 
was as to the power of the State to invest persons, like 
negroes, not generally conceded the rights of citizenship, 
with the citizenship of the United States. Taney denied 
that National citizenship was a necessary consequence of 
State citizenship. 

The Fourteenth Amendment has removed all ground 
of dispute and doubt. It tells who are citizens of the 
United States and of the States wherein they reside, — 
"All persons born or naturalized in the United States 
and subject to the jurisdiction thereof." The Four- 
teenth Amendment then goes on to say, "Nor shall 
any State deprive any person of life, liberty, or pro- 
perty without due process of law, nor deny to any 



The States and their Government 359 

person within its jurisdiction the equal protection of 
the laws." 

Before the Civil War the fundamental civil rights of 
the citizen were exclusively within the control and pro- 
tection of the States. Were they now to come for review 
within the operation of the United States courts? Were 
civil rights nationalized? In saying that no State shall 
make or enforce any law which shall abridge the privi- 
leges and immunities of citizens of the United States the 
Fourteenth Amendment did not intend to transfer the 
security and protection of all the fundamental , „ 

. ., . , pi . . r , The Protection 

civil rights of the citizen from the States to the of the citizen 
Federal Government. The powers of the Na- J\ hls ^T 11 

r Rights stall a 

tional Government over civil rights were not state Func- 
increased. Of the two citizenships — State and tlon# 

National — the amendment recognized that each had its 
corresponding and different privileges and immunities. 
What were the privileges and immunities of State citizen- 
ship? Those which are fundamental, which touch the 
national and inalienable rights of all citizens, — the right 
to life, liberty, and property, the rights which have at all 
times been enjoyed by citizens of the several States an- 
terior to all their constitutions, State or National, and 
which these constitutions were designed to protect and 
secure. The protection of these rights was not transferred 
by the war amendments to the Congress of the United 
States. If Congress had to supervise and guard these 
rights, it might pass laws in advance limiting and restrict- 
ing the exercise of legislative power by the State. 4 ' Such 
a construction would constitute this court a The Supreme 
perpetual censor upon all legislation of the Court on 

5, , .'.,., r 1 • •.• Citizenship 

States, on the civil rights of their own citizens, and the Four . 
with authority to nullify such as it did not ap- teenth Amend- 

J 111 r j rnent, in the 

prove. The effect would be to tetter and slaughter- 
degrade the State governments by subjecting House Cases - 
them to the control of Congress, to change radically the 



360 The American Republic 

whole theory of the relations of the State and Federal 
Governments to each other and of both these govern- 
ments to the people. 1 

What are the privileges and immunities of the citizen 
of the United States which the States are forbidden to 
abridge? Those which are within the sphere of the 
United States Government. 

Free access to the seat of government, to share its 
offices, to administer its functions. 

Free access to its ports, subtreasuries, land offices, and 
courts. 

Protection to life, liberty, and property on the high seas 
and in foreign countries, through diplomatic agencies. 

To peaceably assemble and petition for redress of 
grievances. 

The writ of habeas corpus. 

To use the navigable waters of the United States. 

To become a citizen of any one of the States by a bona 
fide residence therein. 

One born in the United States and subject to its laws 
is a citizen of the United States and of the State where he 
lives. Those naturalized by the laws of the United States 
are national citizens and citizens of their respective States. 
If a citizen of one State moves to another, he becomes 
by that act a citizen of the new State. He does not 
carry with him the privileges and immunities conferred 
by the former State, but the new State must allow him 
all the rights and privileges it allows its own citizens. 
A citizen of a State is always, or is soon to be, a citizen 
of the United States, but a person may be a citizen of the 
United States without being a citizen of one of the States, 
as he may have his residence in Washington City or in 
the Territories. 

1 Chief Justice Chase, United States Supreme Court decision in the 
Slaughter- House cases. 

2 The Supreme Court in the Slaughter-House cases. 



The States and their Government 361 

Thus we see the State is still the guardian of the funda- 
mental civil rights of the citizen, as well as the determiner 
in the largest extent of the citizen's political privileges. 
In the American system the State is an ancient and hon- 
orable body politic, and its legitimate rights and privi- 
leges will continue to be jealously and carefully guarded 
by all parties in the State. 



CHAPTER VIII 

THE TERRITORIES AND THEIR GOVERNMENT 

THE Territories of the United States may be grouped 
as follows : 

1. Three Organized Territories : Area in Sq. Miles. 

Arizona 113,020 

New Mexico 122,580 

Oklahoma 39,030 

2. Two Unorganized Territories : 

Alaska 531,000 

Indian Territory 31,400 

3. The District of Columbia 60 

4. The Island Possessions : 

Hawaiian Islands 6,640 

Porto Rico 3,600 

The Philippines 1 115,300 

The Organized Territories have a form of government 
provided for them by Congress. Congress has extended 
to them the provisions and guarantees of the Constitu- 
tion. Therefore the fundamental law for their govern- 
ment may be said to consist of (a) the United States 
Constitution and {b) the Organizing Act of Congress. 

The act of Congress by which a Territory is organized 
bears to the people of a Territory the relation that a State 
The Organiz- constitution bears to the people of a State. 
ingActfor This fundamental law, however, was not or- 

emtory. Gained or adopted by the inhabitants of a 
Territory, nor is it within their control. It was created 

1 Guam, three Samoan Islands, and the Danish West Indies are other 
island possessions. The treaty for the Danish islands is still pending in 
Denmark. 

362 



The Territories and their Government 363 

by Congress, and it may be amended or repealed by Con- 
gress. Its importance consists in that it defines the 
limits of the Territory and prescribes the forms, rules, 
and principles for the conduct of its government. It 
therefore partakes of the nature of a constitution. The 
famous Ordinance of 1787 was the forerunner of all these 
organizing acts. That Ordinance was a great T he Ordinance 
and worthy constitution for the Territories for of z 7 8 7- 
which it was made, and to originate its provisions re- 
quired legal ability and constitutional statesmanship of a 
high order. This great Organizing Act became famous 
for several reasons : 

1. It gave a form of government to the Northwest 
Territory that became a precedent for time to come. 

2. It guaranteed to the Territory free soil. 

" Neither slavery nor involuntary servitude, except in pun- 
ishment of crime whereof the party shall have been duly con- 
victed, shall ever exist in said territory." 

3. It guaranteed free religion. 

■■ No person demeaning himself in an orderly manner shall 
ever be disturbed or molested on account of his mode of wor- 
ship or religious belief. ' ' 

4. It guaranteed free schools. 

' ' Religion, morality, and knowledge being essential to good 
government and the happiness of mankind, schools and the 
means of education shall be forever encouraged." 

5. It guaranteed civil liberty. 

The rights guaranteed in the Virginia Constitutional 
Bill of Rights of 1776 and in the Massachusetts Constitu- 
tion of 1780, coming from the old "English Bill of 
Rights" of 1688, were incorporated in this great Terri- 
torial Act. Free speech, a free press, free assembly, free 



364 The American Republic 

petition, free trial by a jury of his peers, the habeas corpus, 
— to all these common rights of the freemen every inhab- 
itant of the Northwest Territory was to be guaranteed. 

These wise and beneficent provisions of the Ordinance 
of 1787 have been, in the main, transplanted to our new 
Territories as these have been from time to time organ- 
ized for civil government by the Congress of the United 
States. While these great guarantees were not secured 
in law by the Ordinance of 1787 except as they were after- 
wards incorporated in the constitutions and laws of the 
States subsequently erected in this territory, the Ordi- 
nance did much to determine the character of the people 
who settled in the Northwest, and was an effectual in- 
fluence in committing those States to freedom and free 
institutions. 

The later organizing acts have, as a rule, attracted very 
little attention in our history, though they are of the 
utmost importance both from the point of view of their 
subject-matter and from the interests of the people for 
whom they provided their first and original civil govern- 
ment. 

In organizing the Territories, Congress has always had 
in view the admission of the Territories as States of 
The Territory t ^ ie Union. This was the original purpose in the 
Looks Forward first acquisition of territory, even before the 
adoption of the Constitution. In the Treaty of 
1782, by which our independence was recognized, in ad- 
dition to the original thirteen States the territory west of 
the Alleghany Mountains, east of the Mississippi, south 
of the Great Lakes, and north of the thirty-first degree of 
north latitude, was recognized as belonging to the Con- 
federated States. But this territory belonged to certain 
States, not to the United States. Maryland refused to 
ratify the old Articles of Confederation until guarantees 
were given that this territory would be ceded to the 
General Government. In the famous Resolution of 1780, 



The Territories and their Government 365 

by which the old Continental Congress sought to induce 
the claimant States (Massachusetts, Virginia, New York, 
Connecticut), to cede to the General Government the 
territory which they claimed in the West, Congress said : 

" The lands which may be ceded to the United States by 
any particular State shall be disposed of for the common 
benefit of the United States and be settled and formed into 
distinct republican States, which shall become members of the 
Federal Union and have the same rights of sovereignty, free- 
dom, and independence as the other States. ' ' 

In all the territory since acquired by treaty, save that 
of Alaska and the islands lately acquired from Spain, it 
was agreed that the territory so acquired should be in- 
corporated into the Union as soon as possible, and that 
in the meantime the civil rights of the inhabitants should 
be guaranteed. This was the case with Louisiana in 
1803, with Florida in 1819, and with the Mexican cessions 
in 1848, and the Alaskan Treaty guaranteed the rights of 
citizenship to the inhabitants of the transferred territory. 

The Government of an organized Territory Territorial 
has usually provided for three departments * : Government. 
1. Executive; 2. Legislative; 3. Judicial. 

1. The executive consists of a Governor and other offi- 
cers appointed for four years by the President of the 
United States, confirmed by the Senate. Tne TheExecutive 
Governor performs the ordinary executive 
duties, to see that the laws of the United States and of 
the Territory are faithfully executed. He generally has 
a veto on legislative acts, which may be overridden by a 
two-thirds vote of each House. 

The other executive officers of the Territory, the Secre- 
tary, Treasurer, Auditor, and Superintendent of Public 

1 This description applies to the customary governments in the organized 
Territories in the western part of the United States. The Governments 
for Porto Rico and the Philippines are separately described. See pp. 374, 376. 



366 The American Republic 

Instruction, are also appointed by the President and con- 
firmed by the Senate, and, like the Governor, are subject 
to the President's removal. 

2. The legislature is composed of two Houses, a Senate 
of twenty-four persons, and a House of sixty-two per- 
The sons. 1 Each House is elected by the voters of 
Legislature, {-fog Territory for a term of two years, and the 
legislature sits but once in that period. The legislative 
sessions are limited to sixty days and the salary of 
a member is four dollars a day. The Houses work by 
the Committee System. 

The suffrage is regulated by law made in the Territory, 
but Federal law requires that each member of the Terri- 
torial legislature shall reside in the district which he 
represents. 

The legislative power of every Territory is as extensive 
as that of a State, — extending " to all rightful subjects of 
legislation not inconsistent with the Constitution and laws 
of the United States." This includes, of course, the 
organizing act creating the Territory. "No law shall be 
passed interfering with the primary disposal of the soil; 
no tax shall be imposed on the property of the United 
States, nor shall the land or other property of non-resi- 
dents be taxed higher than the lands or other property 
of residents." 3 The legislative power of the Territories 
is also limited by the important right of Congress to 
modify or annul at any time any Territorial law. In the 
organization of some Territories the organizing acts have 
directed that all Territorial acts be submitted to Congress 
— to be of no effect if disapproved. This over-control of 
Congress is not usually exercised. 

3. The judiciary consists of three or more judges of a 
Supreme Court, appointed for four years by the President 
with the consent of the Senate, together with a United 

1 Oklahoma has thirteen in the Upper House and twenty-six in the Lower. 

2 United States Statutes, 1878. 



The Terrirtoies and their Government 367 

States District Attorney and a United States Marshal. 
The salary of the judges is three thousand dollars. These 
officers administer both the Federal and local The Territorial 
law. The Territorial courts are not a part of Judiciary, 
the Federal Judiciary ; the Territorial legislature regulates 
their practice and procedure. The Judiciary of a Terri- 
tory, like its legislature, has always been established by 
a law of Congress. They are legislative courts purely; 
they are not constitutional courts in which the judicial 
power conferred by the Constitution on the General Gov- 
ernment can be deposited. It has been held that a judge 
of the District Court of Alaska was not a judge contem- 
plated by the Constitution and was subject to removal by 
the President. 1 If he were a constitutional, not a legis- 
lative, judge, his tenure would, of course, be during good 
behavior. 

The Territories do not take part in presidential elec- 
tions, nor do they send Senators to Congress. They do 
not take part in governing the United States. Each 
Territory may send a delegate to Congress, and he is 
allowed a seat, and he may speak, introduce measures, 
and make motions, but he may not vote. The right of 
a vote in Congress depends on the Constitution, and that 
right is conferred upon States, not upon Territories. 

A Territory is a State in the making. It is organized 
with the purpose of making it into a State. When the 
Territory has a population equal to that of the average 
congressional district the presumption is in favor of its 
statehood, and it should be, and will be likely to be, ad- 
mitted unless there are specific objections. A Territory 
may be kept out for a while for special public reasons, 
as in the case of Missouri on account of slavery, and of 
Utah, later, on account of polygamy. Utah's admission 
was postponed long after it had sufficient population. 
A Territory may be kept out for party reasons, as lately 

1 McAllister vs. United States, 141 United States, 174. 



368 The American Republic 

in the case of Oklahoma, whose silver complexion was 
objectionable while the silver issue was prominent; or 
a Territory may be brought in for special party and 
political reasons, as in the case of Nevada, which was 
admitted as a State (1864), when its population was 
only about twenty thousand, for the sake of getting 
its vote in favor of the Thirteenth Amendment. Con- 
gress has absolute discretion and power in the matter and 
may admit or refuse to admit as it pleases. Congress is 
bound in the matter only by its sense of justice and fair 
play, by the principles and practices of the past, and by 
public opinion. 

1 i New States may be admitted by the Congress into this Union; 
but no new State shall be formed or erected within the jurisdiction 
of any other State ; nor shall any State be formed by the junction 
of two or more States, or parts of States, without the consent of 
the legislatures of the States concerned, as well as of the Con- 
gress." l 

How is a Territory made into a State? How do Terri- 
tories pass into statehood? 

When a Territory has a population equal to that of an 
average congressional district, its legislature will "me- 
HowaTem- m °rialize, " or petition, Congress to pass what 
tory Becomes is called an ' ' Enabling Act ' ' for the Territory. 
If Congress is favorably disposed to the re- 
quest it passes such an act. This act is to "enable," or 
authorize the people of the Territory to form a State 
constitution. The act will either provide for a Terri- 
torial constitutional convention, or it will authorize the 
The Enabling Territorial legislature to provide for one. The 
Act - Enabling Act may also prescribe conditions 

to be fulfilled by the new constitution. In accordance 
with the law of Congress or of the Territorial legislature, 
the people of the Territory elect delegates to a constitu- 

1 Art. IV., Sec. 3, CI. I. 



The Territories and their Government 369 

tional convention, this body frames a constitution, and 
submits it to the voters of the Territory. If adopted by 
the voters, it is then submitted for the approval of Con- 
gress and if the constitution is accepted by that body, if 
the new State constitution provides for a Republican form 
of government and the conditions suggested by Congress 
are complied with, the State is declared a member of the 
Union by a formal resolution, and Representatives are 
apportioned to the new State. The Territory has then 
entered fully into the enjoyment of self-government on 
an equal footing with all the other States, and the Na- 
tional Government has no further power to interfere in 
its "domestic concerns." While the process described 
above is the usual one for making a State out of a Terri- 
tory, it has frequently happened that the Territory has 
not awaited an ' ' Enabling Act ' ' of Congress, but it has 
itself taken the initiative in calling a constitutional con- 
vention in the Territory. With the constitution already 
in hand the Territory applies to Congress for admission. 
This is true of States formed by the division of other 
States, as in the case of Maine, Kentucky, and West Vir- 
ginia, and it was likewise the experience of Michigan and 
California, on account of local conditions. 

It was formerly contended that a new incoming State 
should be left free to make its own constitution in its own 
way ; that, while Congress could admit or refuse imposing 
to admit, yet if it chose to admit it must Conditions on 
admit into a union of equal States, and to 
impose conditions on an incoming State was unconsti- 
tutional. This was the constitutional question involved 
in the discussion over the admission of Missouri. Con- 
ditions not imposed on the original States could not be 
imposed on new States. As between the States and 
the Central Government all powers were distributed by 
the Constitution. For Congress to assume to redis- 
tribute these powers, — to say that a new State should 
24 



37° The American Republic 

be limited in a way that the Constitution did not say, 
— was to assume a sovereignty that did not belong to 
it, that would turn our Federal into a centralized system. 1 
But late Enabling Acts have required the Territorial con- 
ventions to make "by ordinance irrevocable without the 
consent of the United States and the people of the United 
States, provisions for perfect religious toleration and for 
the maintenance of public schools free from sectarian 
control ; and that polygamous or plural marriages are for- 
ever prohibited." 3 No such conditions were imposed on 
the original States. 

Whether such conditions are inviolable, and whether 

a new State, when it is once safely in the Union, may 

repeal these ordinances which it has been 

May a State , 

violate the required to pass, and disregard the conditions 
Terms of its f j ts admission, are academic questions which 

Admission? . ^ 

have been considerably discussed, but they 
have not yet had practical application in experience. 

While Congress has never attempted to interfere with 
the States in making whatever alterations of their consti- 
tutions the States see fit, such an act on the part of a new 
State would be a serious breach of faith. The people of 
the United States would have it in their power to punish 
such a disregard of obligations by shutting the doors of 
the Senate and House of Representatives against the 
Representatives elected by the people of the offending 
State, and by denying them "a voice in the councils of 
the nation because they had acted in bad faith and vio- 
lated their solemn agreement by which they succeeded in 
getting themselves into the condition of a State." 3 

Our political theory regards all citizens as equal, and 

1 See Pinkney's speech on admission of Missouri, Von Hoist's Constitu- 
tional History of the United States, vol. i. ; Burgess's Middle Period, pp. 
86-87. 

2 Enabling Act for Utah. 

3 Brief of Judge Jeremiah M. Wilson, in advocating the admission of 
Utah, 1887. 



The Territories and their Government 371 

as equally entitled to a voice in their government, and in 
the days of 1776 we asserted that there must be "no tax- 
ation without representation." But the peo- The Tem- 
ple of a Territory are taxed by national laws in tories and Tax - 

^1 1 . r 1 • ■, . -, , . ation without 

the making of which they have no voice. Represen- 
They may be governed entirely without their tation. 

consent. While in a Territorial condition the people 
of a Territory can have no voice in determining their 
own fundamental law. The only way in which they 
can have any voice in their government is through 
the organization and usages of the national political 
parties. The Territorial people are under the absolute 
governing control of Congress. The only way in which 
they can come into self-government, so that American 
principles can be applied to them, is by the process of 
statehood, or by a liberal Organizing Act, by which Con- 
gress consents to leave to them a large measure of self- 
government. It is by this means and by the fact that it 
has always been our policy and intention to admit the 
Territories to statehood as soon as practicable and safe, 
that we "save our face " in our profession of adherence 
to "taxation by representation" and "government by 
consent." 

Alaska and the Indian Territory represent the "Un- 
organized Continental Territories." They are Unor anized 
not allowed local self-government, but are gov- continental 
erned from Washington, somewhat like Crown emtones. 
Colonies of Great Britain. 

The civilized tribes of Indians in the Indian Territory 
have maintained local governments of their own, with 
elective legislatures and executive officers ; t> u t Governmentof 
it was intended that the functions of these the Indian 
governments should be limited to the Indians, 
an arrangement secured by treaties with the tribes, in 
which each Indian nation is treated by our Government 
as a tribal whole. Each tribe was looked upon as capable 



37 2 The American Republic 

of managing its own affairs and governing itself. Our 
treaties have regarded the Indians, each tribe for itself, 
as distinct, independent political communities, capable 
of maintaining the relations of peace and war, of being 
responsible in their political character for any violation of 
their engagements, or for any aggression committed on 
the citizens of the United States by any individual of 
their community. But an Indian tribe occupying land 
within the jurisdiction of the United States is not a 
Domestic "foreign State." They are "domestic, de- 
Dependent pendent nations. " They occupy a territory to 
Nations. wn ich we assert a "title independent of their 
will, which must take effect in point of possession when 
their right of possession ceases. Meanwhile they are in 
a state of pupilage. Their relation to the United States 
resembles that of a ward to his guardian." ' 

Under this "state of pupilage," our Indian treaties 
placed the Indians under the protection of the United 
States, admitted the supremacy of the United States, 
provided for its interference in certain cases, recognized 
the Indians' right to their lands of described boundaries, 
made certain provisions for their needs, and gave to the 
United States the right to regulate their trade. 

This tribal relation, this wardship and state of pupilage, 
is now being broken up. Under it there has been no 
Disappearance uniform government for the Indian Territory, 
of the Tribal Oklahoma was set off with a separate Territorial 
government in 1890. The whites, by lease 
from the Indians and by bribery and fraud or intermar- 
riage, obtained citizenship and ownership of land within 
the Indian nations, until finally the whites far outnum- 
bered the Indians. In 1898, Congress decided to change 
entirely the basis of government for the Indian Territory 
and to this end adopted a code of laws for the Territory. 

1 Chief Justice Marshall, in Cherokee Nation vs. Georgia. 1831, 5 
Peters, 1. 



The Territories and their Government 373 

United States courts were established within the Indian 
Territory, and the legislation of the tribes was subject to 
approval by the President. Provision is made for the 
allotment of land in severalty under United States control 
and for the early and entire cessation of Indian govern- 
ment. In proper time the usual Territorial government 
will be provided. 

Alaska, purchased from Russia in 1867, has an area of 
531,000 square miles, with a population of 44,000. Con- 
gress, by Act of June 6, 1900, provided a civil Alaska and its 
code for Alaska. The executive power is vested Government, 
in a governor appointed by the President, with the con- 
sent of the Senate, for four years. The Surveyor-General, 
who is ex-officio Secretary, United States Attorneys, 
Judges, and other responsible officers are also to be ap- 
pointed by the President. A District Court is established, 
having general jurisdiction over civil, criminal, equity, 
and admiralty cases, and for the settlement of mining 
disputes. Appeals may be taken from this court to the 
United States Supreme Court if constitutional questions 
are involved ; in other cases appeals are carried to the 
United States Circuit Court. Three judges are appointed 
who are authorized to appoint Commissioners throughout 
Alaska, who are to act as justices of the peace, recorders, 
and so forth. Provisions are also made for appointment 
of marshals and deputies for carrying out the orders 
of the Judges and Commissioners. There is no pro- 
vision for a general legislative body: Congress acts in 
that capacity. Local self-government is provided for 
in towns of three hundred inhabitants by their incorpor- 
ation. 

Officially, the term " Insular Possessions" is used to 
include the Philippines, our Samoan Islands, Guam, and 
other minor islands in the western Pacific that T he insular 
belong to the United States. Porto Rico, and Possessions, 
the West Indian Islands lately purchased from Denmark, 



374 The American Republic 

as they are also under the absolute government of Con- 
gress, may be included in this description. 

The Samoan Islands were formerly under the govern- 
ment jointly of Great Britain, Germany, and the United 
Samoan States. In 1900, this arrangement was termi- 

isiands. nated by a treaty, and we obtained absolute 

ownership of three of the Samoan Islands, the most im- 
portant being Tutuila. A military government was es- 
tablished there. 

Porto Rico came under the jurisdiction of the United 
States by the Treaty of Paris with Spain in 1898. The 
Porto Rico island has an area of about 3,600 square miles, 
and its and a population of about 953,000. Civil gov- 

ernment for Porto Rico along the lines of that 
for our Organized Territories was provided in the so-called 
Foraker Act, passed by Congress April 12, 1900. This 
act established ports in the island, provided a system of 
education, established the authority of the United States 
District Courts, provided for a revenue system and in- 
ternal improvements and organized a local Territorial 
government. 

The governmental system provides (1) a Chief Execu- 
tive who is appointed by the President, with a term of 
four years at a salary of $8000 a year. (2) An Executive 
Council of eleven members, also appointed by the Presi- 
dent, consisting of a Secretary, Attorney-General, Treas- 
urer, Auditor, Commissioner of Education, Commissioner 
of the Interior, and five others. Five of the Council are 
to be native Porto Ricans, and all are to hold office for 
four years. (3) A Lower House of legislation, consisting 
of thirty-five members elected every two years by the 
voters. The Judiciary consists of a Supreme Court and 
a District Court of the United States for Porto Rico. 

This government, of course, is subject at any time to 
change by Congress, the latter body exercising sovereign 
and absolute control over the Island. The Island is al- 



The Territories and their Government 375 

lowed a resident commissioner at Washington, whose 
duty it is to look after the interests of the Island in Con- 
gress. This officer is not like the delegates from the other 
Territories, as he has no seat in Congress, but he has, 
rather, diplomatic relations with the President. The 
previous subjects of Spain in the island are declared to 
be citizens of Porto Rico (not of the United States), 
and are entitled to the protection of the United States 
except those who choose" to retain their allegiance to 
Spain. 

The Sulu Islands in the Philippine group were never 
actually under Spanish rule. A treaty was made between 
the Sultan of Sulu and the United States in The Suiu 
August, 1899. American sovereignty was ac- islands, 

knowledged and its protection against all foreign powers 
was extended over the islands. The Sulu government 
of the Sultan was not interfered with, the Sultan and his 
officers receiving salaries from our Government. It was 
provided that the United States may occupy and control 
such points in the islands as its interests may demand. 
The native institutions of slavery and polygamy were not 
interfered with, though any slave was given the oppor- 
tunity to purchase his freedom. 

The Constitution of the United States says : 

" Neither slavery nor involuntary servitude, except as a 
punishment for crime whereof the party shall be Slavery among 
duly convicted, shall exist within the United States the Suius. 
or any place subject to their jurisdiction." 1 

No treaty law can be higher than the law of the Con- 
stitution, and it is therefore doubted whether the ar- 
rangement made by our military authorities with the 
Sulu Sultan can be sustained by Congress under any civil 
administration. 

1 Thirteenth Amendment. 



37 6 The American Republic 

The Philippines, like Porto Rico, came under the juris- 
diction of the United States by the Treaty of Paris, 1898. 
The This treaty was signed by the joint commis- 

Phiiippines. sioners at Paris, December 10, 1898, ratified 
by the United States February 6, 1899, declared to be 
in effect, April 1 1, 1899. During these negotiations, and 
until Congress should erect a civil government for the 
Philippines, the government was a military government 
under the President as Commander-in-Chief of the mili- 
tary and naval forces. The President appointed General 
Otis as Military Governor of the Islands, and a special 
commission of five members, with President Schurman, 
of Cornell University, at its head, to investigate the 
condition of affairs in the islands. Early in 1900 a 
new Philippine Commission of five members was ap- 
pointed, with Judge William H. Taft at its head, who 
went to the Philippines for the purpose of establishing 
civil government there, when this was authorized, and so 
far as conditions would permit, and as the Military Gov- 
ernor or the President might direct. Some question 
arose as to whether the Civil Governor or the Military 
civil Govern- Governor should control. The Civil Govern- 
ment in the ment proceeded to proclaim amnesty to all 
ppmes. j n insurrection against the United States, and 
municipal and provincial governments were erected in 
certain cities and provinces under the authority of the 
Commission. The Fifty-sixth Congress adjourned (March, 
1901) without providing a permanent civil government 
for the Philippines, but provided, instead, that all powers 
"for the establishment of civil government and for pro- 
tecting the inhabitants of said islands in the enjoyment of 
their liberties, property, and religion should be vested in 
such persons and exercised in such manner as the Presi- 
dent should direct." Reports of this temporary govern- 
ment are to be made to Congress. The Act of 1902 
for the government of the Philippines, following the re- 



The Territories and their Government 377 

port of the Philippine Commission, provides that after 
January I, 1904, the executive power shall be vested 
in a Governor and a Cabinet of six heads of Depart- 
ments, a Secretary, an Attorney-General, a Treasurer, 
an Auditor, a Commissioner of the Interior, and a Com- 
missioner of Education, all required to reside in the Phil- 
ippines, appointable and removable by the President. 
They may or may not be natives, but no person holding 
any civil or military office under the United States is 
eligible to appointment in this Cabinet. The Governor 
and his Cabinet, with five native inhabitants of the Phil- 
ippines, also appointed by the President, constitute a 
Council. The political functions of this Council are those 
of an upper House. The Lower House, or House of 
Delegates, consists of thirty members, elected biennially 
by the people. A voter for the House of Delegates must 
be twenty-one years of age, able to read or write either 
Spanish or English, or possess taxable property, real or 
personal, situated in the Philippines, and must have re- 
sided in the Philippines for one year next preceding the 
election. All legislative functions are exercised by the 
concurrent action of these two Houses, the one ap- 
pointed by the President, the other elected by the people. 
The Governor is to have a salary of fifteen thousand 
dollars, a Cabinet member of ten thousand dollars per 
year. The delegates are to have five dollars a day, and 
the salaries of the native members of the Council are to 
be fixed by the Philippine legislature. The provisions 
for the protection of religious freedom, property, and 
personal rights, are the same as in our own Constitution, 
but there are no specific provisions guaranteeing freedom 
of speech, freedom of the press, freedom of assembly, 
the right to bear arms, or trial by jury. 

It will be seen that there must be concurrent agreement 
between the provincial and the national judgment (repre- 
sented by the appointees of the President) before legisla- 



37 8 The American Republic 

tion can be secured. However, "in case of the failure of 
the legislature during the three months of its regular ses- 
sion to vote the necessary supplies for the carrying on of 
the government, then the right and authority to vote such 
supplies is hereby vested in the Council." Thus, as will 
be seen, the acts providing government for Porto Rico 
and the Philippines are along essentially the same lines. 
Danish West The islands in the West Indies lately acquired 
India islands. from Denmark— St. Thomas, St. John, and 
St. Croix, — will have their political status determined by 
Congress. The government of these islands will be 
like that of Porto Rico, or they may even be placed under 
the Porto Rican government. 

Since the acquisition of the Spanish islands five 
c judges of the Supreme Court, constituting a 

Law and the majority of the Court, though not the same 
island £ ve - n eac j 1 case h ave agreed to the following 

Possessions. & » 

as constitutional law : 

1. After a territory has been acquired by conquest or 
_ „ purchase by the United States it ceases to be 

When Tern- r J 

tory ceases to foreign territory and the tariff laws applicable 
he Foreign. tQ j m p 0r {- s f rom foreign countries no longer 
apply. 1 

2. While it is under military government, the military 
authority may establish a system of taxation, and such 

system of taxation can be constitutionally en- 
Powers of the forced. It may assess duties on goods brought 
Military Gov- f rom New York to Porto Rico, though in 

another decision this trade is declared to be 
coastwise. 2 This power comes within the "war powers " 
of the President. But this war power to exact duties 
upon imports from the United States ceases upon ratifi- 
cation of the treaty. 3 

1 De Lima vs. Bidwell, 182 U. S., I. 

s Huis vs. New York and Porto Rican Steamship Company. 

s Dooley vs. United States. 



The Territories and their Government 379 

3. Such territory is not an integral part of the United 
States, but a possession of the United States : it cannot 
be made a part of the United States by the TheIslands 
treaty-making power, — i. e., by President and Are a Posses- 
Senate, — but can be made so only by some act ^^raip^t 
of Congress which explicitly or by necessary im- of the United 
plication incorporates it into the United States. States ' 

The treaty-making, or the war power may acquire, but 
cannot incorporate, new territory into the United States. 
The treaty power may convert foreign territory into do- 
mestic territory, but the power to bring this territory into 
the corporation known as the United States is in the rep- 
resentatives of the people in Congress. 1 

By the fii'st decision it is agreed that the treaty and 
war powers of the Government may convert foreign into 
domestic territory. No act of Congress is necessary. 9 
In the fall of 1899, a firm of importers protested against 
paying duties on Porto Rico sugars, and they sued the Col- 
lector of the Port of New York (Bidwell) to recover back 
the duties paid under protest. The importation occurred 
after the ratification of the treaty with Spain ceding Porto 
Rico, but before the passage of the Foraker Act provid- 
ing a civil government for the island. The duties were 
collected under the Dingley Law of 1897, enacted before 
the beginning of the Spanish War, which authorized the 
imposition of duties "on goods imported from a foreign 
country." In another case, a soldier by the name of 
Pepke, returning from the Philippines after the treaty of 
peace with Spain, but before Congress had passed an act 
of civil government for the Philippines, or any act regu- 
lating the tariff rates between those islands and the 
States, brought with him a number of diamond rings. 
These were taken from him by the custom-house officers 

1 See the opinion of Justice White on this point. 

8 See De Lima vs. Bidwell, May 27, 1901, and the Pepke case, or the 
"Diamond Rings" case, December, 1901. 



380 The American Republic 

because he had paid no duty on them. Pepke sued for 
recovery. In this suit for recovery the question was 
whether these rings were imported from a "foreign coun- 
try/' In both these cases the Court held that by the 
fact of cession Porto Rico and the Philippines ceased 
to be foreign territory. A foreign country is one ex- 
clusively within the sovereignty of a foreign nation and 
without the sovereignty of the United States. A district 
ceded to and in the possession of the United States does not 
remain for any purpose a foreign country. Both of these 
conditions must exist to produce a change of nationality 
for revenue purposes. Possession alone is not sufficient ; 
nor is a treaty of cession sufficient without a surrender of 
possession. But when both conditions exist the district 
ceases to be foreign and becomes domestic. A country 
cannot be foreign for one purpose and domestic for an- 
other. The country does not remain foreign with respect 
to the tariff laws until Congress has acted embracing it 
within the customs union. Therefore no act of Congress 
is necessary to make foreign territory into domestic terri- 
tory. According to this decision, when the Treasury 
Department proceeded to collect the same duties that 
had been collectible before the cession it acted unconsti- 
tutionally and illegally. 

The principle here decided is not very important, for it 
has to do with a temporary condition only, though this 
condition may recur frequently. A more permanent and 
fundamental question relates to the power of Congress 
over the ceded territory. 

The constitu- I s Congress restrained in its government of the 
tionai Powers ceded Territories by the limitations of the Con- 

of Congress in . . 
the Island Stltution ? 

Possessions. This has been the most prominent question 
in American law and politics in recent years. As a ques- 
tion of constitutional law it has been but recently passed 
upon by the Supreme Court in what are generally known 



The Territories and their Government 381 

as the Insular cases, but as a question of statesmanship 
and public policy it is by no means a recent question. It 
came up in our first acquisition of foreign territory by the 
Louisiana Purchase. The Louisiana Purchase was ob- 
jected to as unconstitutional for three reasons : 

1. The Constitution conferred upon Congress no power 
to acquire territory. 

2. But if Congress could acquire territory, neither con- 
quest nor purchase could incorporate the new territory in 
the Union, as the Louisiana Treaty guaranteed 

, x ...... c Constitutional 

to do. It must remain in the condition of objections to 
a colony until it is admitted, not by the the Louisiana 

Purchase. 

treaty power, but by the same confederated 

powers, the States, that had made the Union and the 

Constitution, each State consenting. 

3. The treaty provided that the ships of France and 
Spain be admitted for twelve years into the ports of 
the ceded territory without paying higher duties than the 
ships of the United States. This, it was asserted, was in 
opposition to the clauses of the Constitution which de- 
clare that "no preference shall be given to the ports of 
one State over those of another, and that all duties, ex- 
cises, and imposts shall be uniform throughout the United 
States." 

It was replied, in the first place, that the right to ac- 
quire territory must exist somewhere : it is essential to 
independent sovereignty. As it was prohibited Constitutional 
to the States, the power was necessarily vested Defence of the 
in the United States. It was involved in the 
treaty and war powers and belonged to all independent 
governments. Powers inherent in sovereignty which had 
not been expressly reserved to the States were vested in 
the National Government. This view as to the power 
of the National Government to acquire territory by con- 
quest or purchase is now universally accepted, and the 
power is now unquestioned. In powers that pertain to 



382 The American Republic 

a nation the United States may do what any nation may 
do. 

The second objection was evaded in the recognition of 
the fact that the treaty power had only promised to admit 
the new territory. It was held by the objectors that 
only the States, as the copartners to the compact, could 
fulfil the promise; that, therefore, the new possessions 
must remain in the condition of colonies and be governed 
accordingly. "The union of the States was formed on 
the principles of a copartnership, and it would be absurd 
to suppose that the agents of the parties, who have been 
appointed to execute the business of the compact in be- 
half of the principals, could admit a new partner without 
the consent of the parties themselves." ! As to whether 
the treaty-making power could incorporate the inhabi- 
tants of ceded territory with the citizens of the United 
States, no doubt Jefferson and Madison and the men of 
their time denied such power. That such territory and 
its inhabitants would be incorporated by the treaty it- 
self and brought under the Constitution in spite of its 
stipulations was not to be supposed. But it was soon 
subsequently allowed, and it is now not denied, that Con- 
gress was competent to fulfil this treaty promise, which 
it did by the admission of Louisiana in 1812. 

In replying to the third objection, that the Constitution 
required the customs dues to be uniform throughout the 
United States, Nicholson, a leader of the Jeffersonian 
Republicans in the House, said that the Territories of 
the United States were no part of the United States; 
that they were possessions of the United States and only 
became integral parts of it when they were admitted into 
the Union as States. The Territories of the country 
were in the nature of Colonies and might be governed by 
the American Government as it saw fit without regard to 
the restrictions of the Constitution. "Louisiana is a 

1 Speech of Griswold, Annals of Congress, 1803-1804, p. 461. 



The Territories and their Government 383 

territory purchased by the United States in their con- 
federate capacity, and may be disposed of by them at 
pleasure. It is in the nature of a colony whose commerce 
may be regulated without any reference to the Constitu- 
tion." 1 

In harmony with this political view, the act of Congress 
organizing a temporary government for Louisiana gave 
the President of the United States the same civiiGovem- 
power over the territory that had been exer- mentfor 
cised by the King of Spain, until Congress i8o 4 Was 
should decide upon a permanent form of gov- Absolute, 
ernment. It was seen to be necessary that the United 
States should take possession of the country in the ca- 
pacity of sovereign to the same extent as that of the 
Governments of France and Spain. It was maintained 
that there was no Constitution so far as the Territories 
were concerned. In 1803, Jefferson signed a bill which 
put him in possession of absolute power over the people 
of Louisiana. Afterwards, the permanent government 
for Louisiana, provided in 1804, g ave to tne President 
power to appoint both the Governor and the Legislative 
Council, and the Governor might assemble and prorogue 
the legislature at his pleasure, and he had a negative on 
all legislative acts. Such a government was practically 
absolute and it was such as is not known to the Consti- 
tution. The limitations of the Constitution were not 
held to bind either Congress or the President in the early 
government of Louisiana. 

The public policy pursued in our first territorial acqui- 
sitions has been followed in our last, and that statusof In . 
policy has now received in the late Insular cases habitants of 

, . . ..ii* i • • Ceded Islands 

the sanction of constitutional law in a decision to be Deter _ 
of the Supreme Court. **ned by 

In the treaty which closed the Spanish War 
in 1898, sovereignty over Porto Rico and the Philippines 

1 Gordy's History of Political Parties, vol. i., pp. 431-432. 



384 The American Republic 

was ceded to the United States, and it was provided in the 
treaty that the " civil and political status of the native 
inhabitants shall be determined by Congress." 

As a point of constitutional law the question of the ex- 
tent of congressional power in these islands came before 
the Supreme Court in a case to determine whether Con- 
gress had power to establish a different revenue system 
for the ceded territory from that which applies "through- 
out the United States." The Constitution says that 
"all duties, imposts, and excises shall be uniform through- 
out the United States." 

In November, 1900, after the passage of the Foraker 
Act providing a civil government for Porto Rico, an im- 
porter shipped into New York some oranges from that isl- 
and. Duties were demanded on these oranges under the 
Foraker Act. The former case, 1 in which the Court held 
that Porto Rico was domestic, not foreign, territory, came 
up after the treaty cession of the island, but before Con- 
gress had passed an act for its civil government. The 
latter case, testing the extent of congressional power, 
arose after Congress had passed an act organizing Porto 
Rico into a Territory, and providing for the laying of 
duties upon imports from the island different from the 
duties on importations from foreign countries. Such 
different duties, of course, could not be laid at all if Porto 
Rico were a part of the United States. If Porto Rico 
were a part of the United States in the sense in which In- 
diana or Arizona or New Mexico or California is, no 
duties could be laid upon her products any more than 
duties could be laid upon a cargo of oranges brought from 
San Francisco to Chicago. It will be seen that this case 
involved the whole question of the power of Congress 
over the Territories, — whether this power is unlimited 
and plenary, or whether it is limited by the restraints of 
the Constitution. 

1 The De Lima case. 



The Territories and their Government 385 

In concluding its decision the Supreme Court said : 

' ' Patriotic and intelligent men may differ widely as to the 
desirableness of this or that acquisition, but this is solely a 
political question. We can only consider this aspect of 
the case so far as to say that no construction of congress is 
the Constitution should be adopted which would Not Limited 
prevent Congress from considering each case upon f ^n-Revenue 
its merits unless the language of the instrument Clause " of the 
imperatively demand it. A false step at this time onstltution - 
might be fatal to the development of what Chief Justice Mar- 
shall called 'the American Empire.' Choice in some cases, 
the natural gravitation of small bodies towards large ones in 
others, the result of a successful war in still others, may bring 
about conditions which would render the annexation of distant 
possessions desirable. If those possessions are inhabited by 
alien races, differing from us in religion, customs, laws, meth- 
ods of taxation, and modes of thought, the administration 
of government and justice, according to Anglo-Saxon princi- 
ples, may for a time be impossible ; and the question at once 
arises whether large concessions ought not to be made for a 
time, that ultimately our own theories may be carried out, 
and the blessings of a free government under the Constitution 
extended to them. We decline to hold that there is anything 
in the Constitution to forbid such action. We are therefore of 
opinion that the island of Porto Rico is a territory appurte- 
nant and belonging to the United States, but not a part of the 
United States within the revenue clauses of the Constitution; 
that the Foraker Act is constitutional, so far as it imposes 
duties upon imports from such island, and that the plaintiff 
cannot recover back the duties exacted in this case." l 

It was thus held that the uniform revenue clause of 
the Constitution does not bind Congress in the govern- 
ment of the ceded islands. In respect to a customs law 
for the island the power of Congress is not determined by 

1 Supreme Court decision, Downes vs. Bidwell, May, 1901. 
25 



386 The American Republic 

the Constitution. The Constitution of the United States 
in this particular is not the constitution for Porto Rico. 

This was all that was decided in this case. Whether 
other constitutional restrictions apply to the ceded terri- 
tory, and, if so, which apply, remains to be determined. 
But the decision is significant of more than this, because 
of its political bearings. The governmental principles or 
the politics for the guidance of statesmen that have been 
deduced from this decision may be summarized as fol- 
The Pontics of * ows : Tk e people of the ceded Islands are under 
the Supreme the complete sovereignty of Congress ; in the 

Court Decision. • r .1 • • r* 

exercise of this sovereignty Congress, repre- 
senting the people of the United States, is controlled by 
no legal limitations except those that may be found in the 
treaty of cession ; the people of the Islands have no right 
to have these islands treated as States, or to have them 
treated as the Territories previously held by the United 
States have been treated ; they have no legal rights under 
the provisions of the Constitution ; territory can now be 
acquired which does not contemplate statehood; our 
Constitution was established for the people of the United 
States themselves and to meet the conditions existing 
upon this continent, and therefore the people of the new 
territory can assert against Congress no legal right what- 
ever not found in the treaty of cession. 1 The only re- 
straint imposed upon Congress in the government of the 
Islands is the restraint of moral and customary law, 
or the law of precedent, or such limitations as public 
opinion may impose; the written Constitution does not 
apply to the new Territories. Their inhabitants are 
not citizens of the United States, but subjects, they are not 
members of the body politic for whom the Constitution 
was made, but are under its government and subject to 
its control ; these territories are not a part of the United 
States until made so by an act of Congress but are only 

1 Report of Secretary of War, 1899. 



The Territories and their Government 387 

dependent colonies, or appurtenances, or possessions of 
the United States, and that therefore the prohibitions of 
the Constitution on the power of Congress do not apply- 
in their government ; Congress has a free hand to do as 
the public welfare may demand. 

Those who oppose the decision see more dangerous 
political aspects within it, — political features that lay the 
axe at the very root of constitutional govern- objections to 
ment. If in governing the Territories the the Decision. 
Constitution can be set aside in one particular it can be 
set aside in all ; if the principle of this decision is to be ex- 
tended and carried to its logical conclusion Congress may, 
if it choose, assess an export tax at any territorial port, 
or impose import duties not uniform with those at other 
ports of the United States, or pass ex post facto laws, bills 
of attainder, or grant titles of nobility, deny the right of 
trial by jury, or the right of free speech or a free press; 
in short, the government of Congress for the Territories 
is sovereign, supreme, and absolute, unlimited by any 
part of the Constitution, and the people of the new terri- 
tories hold their rights of life, liberty, and property at the 
absolute will of Congress. 

The decision of the Court by no means involves all 
these conclusions. The decision does not assert that none 
of the articles of the Constitution apply to Porto Rico, 
The Justices concurring in the decision recognized the 
necessity of guarding against such conclusions. Justice 
Brown, in announcing the judgment of the Court, said: 

" There is a clear distinction between such prohibitions as 
go to the very root of the power of Congress to act at all, 
irrespective of time or place, and such as are operative only 
1 throughout the United States, ' or among the several States. 
Thus when the Constitution declares that no bill of attainder 
or ex post facto law shall be passed and that 'no title of nobility 
shall be granted, ' it goes to the competency of Congress to pass 
a bill of that description. ' ' 



388 The American Republic 

The same remark applies to the prohibitions contained in 
the amendments, but as these amendments were not in- 
volved in the case the Court very properly declined to 
express an opinion as to how far the bill of rights con- 
tained in the first eight amendments is of general and 
how far of local application. 

The decision of the Court continues: 

"There may be a distinction between certain natural rights, 
enforced in the Constitution by prohibitions against interfer- 
ence with them, and what may be termed artificial or remedial 
rights which are peculiar to our own system of jurisprudence. 
Of the former class are the rights to one's own religious opinions 
and to a public expression of them, or, as sometimes said, to 
worship God according to the dictates of one's own conscience; 
the right to personal liberty and individual property; to free- 
dom of speech and of the press; to free access to courts of 
justice, to due process of law, and to an equal protection of the 
laws; to immunities from unreasonable searches and seizures, 
as well as cruel and unusual punishments, and to such other 
immunities as are indispensable to a free government. Of the 
latter class are the rights to citizenship, to suffrage, and to the 
particular method of procedure pointed out in the Constitution 
which are peculiar to Anglo-Saxon jurisprudence, and some 
of which have already been held by the States to be unneces- 
sary to the proper protection of individuals. Whatever may be 
finally decided by the American people as to the status of 
these islands and their inhabitants, — whether they shall be in- 
troduced into the sisterhood of States or be permitted to form 
independent governments, — it does not follow in the meantime, 
awaiting that decision, that the people are in the matter of 
personal rights unprotected by the provisions of our Consti- 
tution, and subject to the merely arbitrary control of Congress. 
Even if regarded as aliens they are entitled under the prin- 
ciples of the Constitution to be protected in life, liberty, and 
property. This has been frequently held by this Court in 
respect to the Chinese, even when aliens, not possessed of the 
political rights of citizens of the United States. We disclaim 






The Territories and their Government 389 

any intention to hold that the inhabitants of these territories 
are subject to an unrestrainable power on the part of Congress 
to deal with them upon the theory that they have no rights 
which it is bound to respect." 1 

Also Justice White, one of the majority assenting to the 
decision of the Court, but not to the ground of that de- 
cision, declared that "undoubtedly there are general pro- 
hibitions of the Constitution which are an absolute denial 
of all authority under any circumstances or conditions to 
do particular acts, and these are limitations that cannot 
under any circumstances be transcended," and "there is 
no reason to contend that Congress can destroy the lib- 
erties of the people of Porto Rico by exercising powers 
against freedom and justice which the Constitution has 
absolutely denied." 

Not only the judges who gave the decision, but the 
statesmen who are responsible for the political policy that 
it sustains, deny that the people of the ceded 

7 J it 1- • Guarantees to 

islands are deprived of all guarantees to their Civil r^s 
civil rights. To deny the application of the Denied* 

Constitution to Porto Rico is not to deny to 
its people civil rights ; it is not to deny the guarantees of 
peace and order, the right to life, liberty, property, and 
the pursuit of happiness. These are guaranteed by laws 
and forces that are anterior to the Constitution and above 
it. A constitution does not create a body politic ; a body 
politic, already in the possession of recognized rights, 
creates a constitution. A constitution does not beget 
and confer personal and political freedom ; it is not the 
fountain of law nor the origin of private rights. The 
Constitution is the consequence, not the cause, of these 
things. It grants no rights to the people, but it is the 
creature of their power, the instrument to secure and 
defend these rights. As an instrument of government it 

justice Brown's decision of the court, American Law Review, July- 
August, 1901, pp. 599-600. 



39° The American Republic 

is based upon the pre-existing condition of laws, rights, 
habits, and modes of thought. 1 

These are the real principles and forces that make the 
Constitution and the laws and that extend the beneficence 
Th r At °^ tnese * aws over increasing peoples. In 
Unwritten Anglo-Saxon history they have not always 
Guarantees. b een wr itten, but they have always been effec- 
tive. The rights of the people of the ceded islands are 
guaranteed by these principles and forces, or by what has 
been called the spirit of the Constitution and its unwritten 
law. Custom, usage, precedent, our political habits, 
public expectation, the spirit and love of American lib- 
erty, the fundamental principles on which the nation was 
founded and by which it is guided, — all these are the 
forces to be relied upon to restrain the power of Congress 
in the government of the Territories. Congress is bound 
by all the past principles and practices of the nation to 
secure all people subject to its jurisdiction against un- 
reasonable searches and seizures; to accord the right to 
a speedy and public trial ; to prevent excessive bail ; to 
prevent the establishment by state authority of a state 
church; to prevent ex post facto acts and bills of attain- 
der; to prevent slavery except in punishment for crime, 
and civil discriminations on account of race or color. 
Congress is bound to defend these rights for the people 
of the Territories, not because the people there can claim 
privileges under the Constitution but because the nation 
may not violate the fundamental principles on which the 
Constitution was made. 

"The people of the ceded islands have acquired a moral 
right to be treated by the United States in accordance with the 
underlying principles of justice and freedom which we have 
declared in our Constitution, and which are the essential safe- 

1 Hamilton vs. St. Louis County Court, 15 Missouri, 13, cited in the 
American Law Review, January-February, 1901, in a valuable article on 
" The Consent of the Governed." 



The Territories and their Government 391 

guards of every individual against the powers of government, 
not because those provisions were enacted for them, but be- 
cause they are essential limitations inherent in the very exist- 
ence of the American Government." * 

" Doubtless Congress, in legislating for the Territories would 
be subject to those fundamental limitations in favor of personal 
rights which are formulated by the Constitution." a 

The new decision and policy with reference to our 
island possessions may mean, then, at the most, only 
that the government of Congress for the Terri- 

. b & TheGovern- 

tones is a government under an unwritten mentforthe 
constitution instead of a government under a Island Col °- 

nies Is One of 

written Constitution. To say that the islands an Unwritten 
acquired in the war with Spain are not to be Constitution - ' 
regarded as a part of the United States, and that their 
inhabitants are not citizens of this country protected by 
the provisions of our Constitution, — this is not to say that 
they have no rights recognized by our Government ; that 
they are not entitled to trial by jury, to the writ of habeas 
corpus, to representation as the basis of taxation, to move 
and speak and write freely, to acquire property and to 
make contracts and to have these contracts enforced. 
These rights are theirs by a higher law than that of the 
Constitution. 

As to the application of the Constitution in its restric- 
tions and limitations, this may come to the people of a 
ceded territory in various ways : 

1. By express extension of the Constitution over a 
Territory by specific act of Congress. — The Constitution 
does not extend to a new territory by its own How Constitu _ 
power {ex propria vigore), but an act of Congress tionai Rights 
is necessary to make it apply. An issue was "^^ee^ 
raised before the Supreme Court whether a cit- i. By Act of 
izen of the District of Columbia was entitled 

1 Hon. Elihu Root, Secretary of War, Report, 1899. 

2 Justice Bradley, in Mormon Church vs. United States. 136 U. S., i., 44. 



39 2 The American Republic 

to the provisions of the Constitution relating to trial by- 
jury. 1 It was held that he was so entitled. But this was 

because an act of Congress, February 21, 1871, 
in the District expressly extended the Constitution to the 
of Columbia: District of Columbia and because, also, that 

District had been carved out of Maryland and 
Virginia, both of whose Constitutions guaranteed this 
right to their people. When Congress by specific act has 
once extended the provisions of the Constitution over a 
new territory, and thus fixed its constitutional status, 
that status cannot be subsequently changed by a with- 
drawal of the Constitution. As the Supreme Court has 
said, there are some steps that cannot be retraced. 

2. By the organic law of Congress for the Territory ; 
i. e. y the Organizing Act. — An act of the legislature of 
2. By the Iowa dispensing with a jury in certain com- 
TerritorialAct -mon-law actions was held void. 2 But this was 
because the organic law of the Territory of Iowa, the Or- 
ganizing Act, by express provision extended the laws of 
the United States, including the Ordinance of 1787, over 
the Territory. This Ordinance provides for trial by jury. 
So the act of Iowa was void because of its conflict with 
congressional legislation, which had made certain pre- 
liminary provisions the fundamental law of the State. 

3. By Treaty Provisions. — In order to modify the other- 

wise unlimited powers of Congress over the 
y territory acquired by treaty it has been deemed 

necessary to insert limiting provisions in the treaties 
of acquisition. 

In all the territorial treaties save that relating to 
Alaska provision has been made that the territory ac- 
aii Previously quired should be incorporated into the Union 
ceded Terri- as soon as possible, and that in the meantime 
incorporated tne c ™'d rights of the inhabitants should be 
into the Union guaranteed. In the Alaska Treaty with Russia 

1 Callan vs. Wilson. 2 Webster vs. Reid, 2 Howard, 437. 



The Territories and their Government 393 

(1867) no provision was made for the incorporation of the 
Territory into the Union, but provision was made that 
the inhabitants should have the immunities of a^ their ^ 
citizens of the United States and protection in habitants to 
the enjoyment of their liberty, property, and Rights* of 
religion. Had not these terms been made in the Citizenship. 
treaties the territories acquired would have become subject 
to the legislation of Congress without limitation. The 
guarantees to the people are the guarantees secured by 
the treaty. In the case of territory acquired with no lim- 
itations upon the power of Congress, its power is abso- 
lute and exclusive except in so far as it is limited by the 
Thirteenth Amendment, which prohibits slavery in any 
place over which the United States has jurisdiction. 1 

The minority view of the Court in the In- mnoTity View 
sular cases is based upon two fundamental con- in the insular 
tentions : Cases * 

1. The term "United States" used in the revenue 
clause of the Constitution comprehends the Territories as 
well as the States. 

2. The National Government is one of enumerated 
powers, and these powers cannot be increased in any 
part of the Republic's territory or within its jurisdiction, 
except by an amendment to the Constitution. 

As to what the term "United States" means in the 
Constitution, the answer was given by Chief Justice Mar- 
shall, supported by the entire Court, in 1820 : 

' ' This question can admit of but one answer. It is the name 
given to our great Republic which is composed of States and 
Territories. The District of Columbia or the territory west of 
the Missouri is not less within the United States than Mary- 
land or Pennsylvania, and it is not less necessary, on the prin- 
ciples of our Constitution that uniformity in the imposition of 
imposts, duties, and excises should be observed in one than in 
the other." 

1 House Report, 249, February 8, 1900, 56th Congress, 1st session. 



394 The American Republic 

As to whether the National Government can exercise 
unrestricted powers in the Territories, from Marbury vs. 
Madison until the late decisions no utterance of the Court 
has intimated a doubt that in its operation the National 
Government is one of enumerated powers. In the Dred 
Scott case the antislavery minority agreed with the pro- 
slavery majority that the power to legislate respecting 
a Territory was limited by the restrictions of the Con- 
stitution, — as Justice Curtis expressed it, "by the ex- 
press prohibitions on Congress not to do certain things." 
Justice McLean, though asserting the power of Congress 
over the Territories to prohibit slavery, said, "No powers 
can be exercised which are prohibited by the Constitu- 
tion, or which are contrary to its spirit." Associate 
Justice Harlan sets forth very ably the view of the min- 
ority : 

" If it be said that this doctrine restricts the sovereignty of 
our nation, the answer is that the sovereignty of the nation 
under our system resides in the people, the Tenth 
Harlan's Amendment expressly reserving to the States and 
Dissenting the people all powers not expressly delegated to the 
National Government. If the government of dis- 
tant colonies and territories unrestricted by the Constitution 
seems desirable to the sovereign power, the people of the 
United States, they may amend the Constitution, but those 
who expound it can do nothing so absurd or mischievous or 
repugnant to its general spirit as to give it a construction not 
warranted by its words. 

" The protection of a written Constitution against the arbi- 
trary power of the government is as essential to the unrepre- 
sented people of our new possessions as our fathers knew it to 
be for the people of our own land. 

" Congress has no existence and can exercise no authority 
outside of the Constitution. It is not true that Congress may 
deal with new territory just as other nations may. This nation 
is under the control of a written Constitution, the supreme law 



The Territories and their Government 395 

of the land. This is the only source of the powers which our 
government or any branch of it may exert. Monarchical gov- 
ernments, unrestrained by written Constitutions, may do with 
newly acquired territories what this government may not do. 
To say otherwise is to concede that Congress may, by action 
taken outside of the Constitution, engraft upon our republican 
institutions a colonial system such as exists under monarchical 
governments. Such a result was never contemplated by the 
Fathers of the Republic. 

' ' The Constitution is supreme over every foot of territory 
under the jurisdiction of the United States. Concessions can- 
not be made for emergencies. We cannot violate the Constitu- 
tion in order to serve particular interests. The meaning of 
the Constitution cannot depend upon accidental circumstances 
arising out of the products of other countries, or of this coun- 
try. The ceded territory cannot be under the Constitution 
for one purpose and not for another. The people who ordained 
the Constitution never supposed that a change would be made 
in our system of government by mere judicial interpretation. 
If Porto Rico may be treated as though not a part of the 
United States then New Mexico and Arizona may be so treated 
and be subjected to such legislation as Congress may choose to 
enact without any reference to the restrictions of the Constitu- 
tion." 

Justice Harlan then proceeds to consider the undefined 
process by which a people are to be incorporated into the 
political community known as the United States. If the 
treaty, and the payment of the money agreed to and 
the Foraker Act organizing a civil government for Porto 
Rico, — if these steps do not "incorporate " the island into 
the United States, he is unable to see how it can be done 
by a mere resolution. 1 

Judging from the varying opinions of the judges who 
agreed in the judgment of the Court it is not unreason- 
able to suppose that this decision may be reversed in a 

1 Justice Harlan, dissenting opinion in Porto Rican cases. 



39 6 The American Republic 

subsequent case and that, at least in other aspects if not 
in this, the Constitution may be made to apply to the Ter- 
ritories in restraint of congressional power. As a public 
policy the rule here indicated may be at any time reversed 
by the people. It is not certain that this decision is to be 
the final judgment of the Court. It is not certain that in the 
expansion of the Republic a rule has been established to 
govern for all time to come, according to which, 

Our Colonial , , , . , . , - 

Government although new territory may be acquired, the 
Marks a Republic will not expand with its principles of 

Fundamental r r , c r 

Departure in government but will simply accumulate posses- 
our Political s i ons and colonies to be governed by an ex- 

System. b J 

ternal will imposed upon them. No future 
course is certain. It is only the past that is secure. But, 
judging from the past, no one can doubt that in the law 
and politics so recently applied in the government of dis- 
tant colonies the Republic has marked a great departure. 
If there was any fundamental principle in politics for 
which our fathers contended in the American Revolution ; 
if there is any that may be said to have been made sacred 
by the struggles of American history; if there is any 
principle which we have sought for a century to apply in 
the government of States and Territories, it is that the 
rights, liberties, immunities, and constitutional privileges 
of the citizen abide in the local bodies, Colonies and 
States, and that one body politic should not have unre- 
strained legislative power over the trade, revenues, prop- 
erty, lives, and liberties of another. To make this principle 
forever sure against the usurpations of government, re- 
liance was not to be placed merely on "certain principles 
of natural justice inherent in Anglo-Saxon character," 
but a fundamental law defining the limits of government 
should be ordained and established whose limits might 
not be transcended by governmental agents. If the ex- 
istence of a written Constitution cannot save us from 
the violation of this principle it is yet to be seen whether 



The Territories and their Government 397 

the forces described as the unwritten Constitution will be 
able to do so. History has illustrated in so many ways 
the vital importance of this principle that it is safe con- 
stantly to remind the citizenship of America that, as one 
of our own prophets has said, the Republic can last no 
longer than its people are faithful to the ideals and prin- 
ciples of its founders. 1 

REFERENCES ON THE GOVERNMENT OF THE 
TERRITORIES AND THE COLONIES 

1. Outlook, Dec. 16, 1899, "Our Constitution and the Colonies." 

2. Outlook, (a) Feb. 10, 1900, " Our Colonial Responsibilities " ; H. G. 

Curtis on "Government for Our New Possessions" ; (b) Feb. 3, 
1900, " Self-Government in the Colonies " ; (c) Dec. 14, 1901, " The 
Supreme Court Decision and its Consequences." 

3. Report of Secretary Root, December, 1899. 

4. Prof. H. P. Judson, Review of Reviews for April, 1900. 

5. Majority Report, Committee of Ways and Means, House of Repre- 

sentatives, Feb. 8, 1900 ; Minority Report, House Documents. 

6. Speech of Hon. Chas. E. Littlefield, of Maine, in House of Repre- 

sentatives, Dec. 17, 1901. 

7. " The Insular Cases," the annual address of Hon. Chas. E. Littlefield 

before the American Bar Association, Denver, Colo., Aug. 22, 1901. 

8. Speech of Hon. Samuel W. McCall, of Massachusetts, in the House of 

Representatives, Feb. 22, 1900. 

9. American Law Review, July-August, 1901, pp. 597-617, in " Notes on 

Recent Cases." 

10. Decisions of the Supreme Court, United States Supreme Court Re- 

ports, pp. 179-182, Davis, Reporter, 1901. 

11. Bryce, American Commonwealth, vol. i., chap, xlvii. 

12. Current History, March, April, May, 1900. 

13. Arena, May, 1900. 

14. Views of an Ex-President, Benjamin Harrison, chap, vii., "The 

Status of Annexed Territory and of its Free Civilized Inhabitants." 

15. WHITELAW Reid, Problems of Expansion. 

1 James Russell Lowell. 



INDEX 



Abbott, Lyman, Rights of Man, 
J 9» 355 on government by con- 
sent, 25 

Absolute Democracy, 57 

Absolutism, theory of, 26; op- 
posed by the theory of gov- 
ernment by consent, 27 sq. 

Adams, John, 190, 191, 302 

Adams, John Quincy, 130, 186, 
239, 249 

Admiralty Cases, 321 

Alaska, 362; government of, 

373 

Alaskan Treaty, 162 sq.; 392 

"All men are created equal." 
See Equality. 

Allen, Grant, on evils of an arti- 
ficial aristocracy, 39, 40 

Amendments, to United States 
Constitution, purpose of, 79; 
first ten, 84; President's as- 
sent unnecessary, 154; sove- 
reign power unlimited in, 209; 
how secured, 338; to State 
constitutions, 347 

"Anti-Nebraska Men," 308 

Appointing power, 182. See 
President. 

Apportionment of State Sena- 
tors and Representatives, 349 

Appropriations, bills for, 288; 
Committee on, 290; privi- 
leges of Chairman, 290; Ex- 
travagance of, 292; Repre- 
sentative Cannon on, 292; 
and redress of grievances, 
308-310. See Money bills. 



Aristocracy, evils of, 39, 42; as 
a form of government, 47, 49; 
distinguished from oligarchy, 

a 49, 5o 

Aristotle, politics of, 47, 48, 49, 

. 5i 

Arizona, 362 

Austin, Province of Jurispru- 
dence, on a Federal and a 
Confederate State, 64 



B 



Bagehot, on Cabinet Govern- 
ment, 280 
Bancroft, George, 334 
Bank, Second United States, 101 
Banks, representative, 162 
Barron vs. Baltimore, 78, 79, 85 
Bates, Attorney-General, on sus- 
pending Habeas Corpus, 181 
Bayard, manager in Blount's 

Case, 234 
Bayard-Chamberlain Treaty, 166 
Belknap Case, 233, 235, 239 
Benton, Thos. H., Thirty Years' 

View, 153, 240 
Bicameral system, 200; his- 
torical basis of, 201 
Bill of Attainder, 79, 85 
"Bill of Rights," 78, 79; pro- 
visions of, 84-85; 328 
Blackburn, Representative, 310 
Blackstone, Commentaries, 113 
Blaine, James G., 128; Twenty 
Years of Congress, 155, 164, 
189, 216; on election of Sen- 
ators, 217, 218; as Speaker, 
278 



399 



400 



Index 



Blair Educational Bill, 274 

Bland, Representative, 258; 261 

Blount, Representative, 157 

Blount, Senator, impeachment 
of, 233 

Bollman Case, 180 

Booth vs. Ableman, 321 

Bout well, The Constitution at 
the End of the First Century, 
164 

British Constitution, rights un- 
der, claimed for the Colonies, 
3 ; in", 112 

British North America Act, 346 

Brown, Justice, decision in In- 
sular cases, 389 

Bryce, James, 59, 60; com- 
pares the Confederation and 
the National Government, 61, 
62,63,85,86,113; on Execu- 
tive veto, 150; on success of 
American Senate, 241-243; on 
English Speaker, 271; on 
American Committee system, 
286, 287; 342 sqq. 

Buchanan, on Executive inde- 
pendence, 102; as President, 
no; 154; 191; 333 

Buckle, on the Declaration of 
Independence, 10 

Bundesstaat, 63 

Bureaucracy, 51, 52 

Burgess, J. W., Political Science, 
66, 133, 135, 137, 144, 37° 

Burke, Edmund, 287 

Burrows, Senator, in Quay Case, 
198; opposition to Bland Bill, 
261 

C 

Cabinet, the American, 189 
sqq.; in early administra- 
tions, 190, 191; dutiesof, 192; 
relation to President, 192, 193 

Cabinet, English, 265. See Cab- 
inet Government. 

Cabinet Government, theory of, 
96; practice of 97, 98, 99; in ; 
in foreign affairs, 169; com- 
pared with congressional, 279 
sq. 

Calhoun, on delegation of sove- 
reignty, 64; 185; 187; 357 

Cannon, Hon. J. G., on appro- 
priations, 292 



Carlisle, Speaker John G., De- 
fects in the Election of the 
President, 127, 274 

Caucus, unwritten law of, 93; 
222; legislation by, 266; 
committee of, 281; methods 
of party, 299 

Causes of the American Revo- 
lution, 1 sq. 

Centralized Republic, 55, 60 

Chadwick, Capt. F. E., on House 
Committee system, 296, 297 

Chamber of Deputies, French, 
250 

Charters, rights of Colonies un- 
der, 5 

Chase, Chief Justice, 331, 338, 
360 

Chase, Judge, impeachment of, 
238 

Cherokee Nation vs. Georgia^ 7 2 

Chisholm vs. Georgia, 322 

Citizenship, 356 sqq.; Four- 
teenth Amendment and, 356; 
Calhoun on, 357; Dred Scott 
decision on, 357; State pro- 
tection of, 359; Supreme 
Court on, 359; privileges of 
national, 360 

Civil rights, guarantee of, 389 sq. 

Classification of Powers, 80 sq. 

Clay, Henry, 130; opposes Ex- 
ecutive veto, 151, 152; as 
Speaker, 277 

Cleveland, President, 128, 139; 
use of veto, 150; 175; on 
Executive Independence, 185; 
and patronage, 187; 189; 228; 
230, 293 

Cloture, in Senate, 223; in 
House, 262 

Colonial Assemblies, rights of, 

4. 5 
Colonial government and Ameri- 
can principles, 396 
Colonies, references on, 397 
Committee system, by unwritten 
law, 92; in House of Repre- 
sentatives, 279, 281 sqq.; ad- 
vantages of, 284 sq.; dis- 
advantages of, 286; Mr. 
Bryce' s criticism of, 286 sq., 
293; compared with English 
system, 287; remedies for 
abuses, 294 sqq. 






Index 



401 



Committees, of Congress, Com- 
mittee of the Whole, 265, 272, 
281; Caucus, 281; special, or 
select, 282; standing, 282; 
sessions of, 282, 291; control 
of House over, 283; House 
action on reports of, 283; ex- 
pert chairmen of, 284; on Fi- 
nance, 287 sqq.; on Ways and 
Means, 289; need of con- 
certed action, 289; on Appro- 
priations, 290; on Rivers and 
Harbors, 290, 293; confer- 
ence, 293, 300; proposed 
party committees, 296; Cap- 
tain Chadwick on, 296; "Steer- 
ing," 298 
Commons, J. R., proportional 

representation, 126 
Composite State, 61, 63, 64 
Concurrent powers, 81, 82, 83 
Concurrent Resolution, 154, 155 
Confederation, or League, de- 
fined, 61, 64, 65 
Confederation of 1781, 94; Con- 
gress of, 199 
Conference Committee, 293, 300 
Congress of United States, pow- 
ers limited and representative, 
89, 90; list of powers, 255; 
powers denied to, 256; rela- 
tions to the Executive, 301; 
Executive patronage, 304; 
how it may influence the 
President, 305 sqq.; attempts 
to subordinate the Execu- 
tive, 308 sqq.; patronage of, 

3*3- 

Congressional government, com- 
pared with Cabinet, 279 sq. 

Conkling, Senator, 229 

Connecticut Compromise, 207 

4 ' Consent of the governed. ' ' See 
Government by consent. 

Constitution, definition of, 90; 
written and unwritten, 90-91. 
See Unwritten Constitution. 

Constitution, United States, dis- 
tribution of powers by, 72, 79; 
Jefferson's view of, 74; meth- 
ods of changing, 338. See 
State constitutions. 

Constitutional Convention, sov- 
ereign power of, 90 

Constitutional Democracy, 58 
26 



Constitutional government, right 
of Colonies asserted, 3; how 
guaranteed to Island Posses- 
sions, 391 sqq. 

Constitutional law, 80, 163; on 
relation of Executive and Ju- 
diciary, 104, 105, 108; on the 
scope of the treaty power, 
163, 164; Constitutional Limi- 
tations, 325, 345, 348 

Constitutional limitations, 7355., 
78,79, 82, 83 

Constitutional statutes in Eng- 
land, 328 

Construction, rule of, 80; dis- 
tinguished from interpreta- 
tion, 339; Marshall's princi- 
ples of, 340; Lincoln on, 340. 
See Implied powers; Strict 
construction. 

Contested elections, 131; Act 
regulating, 133 

Convention of 1787, 200 sq. 

Cooley, Thomas M., rule of con- 
struction, 80 

Court of Claims, 319, 321 

Court-made law, 336 

Courts, Federal, classes of, 318, 
319 ; jurisdiction of, 320 
sqq.; transfer of cases from 
State, 320; follow State de- 
cisions, 324; power to declare 
an act unconstitutional, 325, 
33°> 33*'t inadvertent nega- 
tive on State laws, 326; 
unique supremacy of, 328, 
337; compared to European, 

3 2 9 
Crawford, W. H., and the "Four 

Years' Law," 186 
Crisp, Speaker, 261 
Crumpacker, Representative, on 

House Rules, 260 
Curtis, George T., on early 

American Cabinets, 191 
Curtis, George William, on Civil 

Service Reform, 186 



D 



Danish West Indies, 362, 378 
Davis, Justice, 132 
Davis, Senator, and Spanish 
treaty, 157 



4-02 



Index 



Declaration of Independence, 
3, 10; preamble of, io-ii; 
teachings of, n sq.; inter- 
pretation of, 12. See Gov- 
ernment by consent. 

De Lima Case, 384 

Democracy, as a form of govern- 
ment, 47, 49, 50, 57; absolute, 
57; constitutional, 58; repre- 
sentative, 58; Madison on fil- 
tration of, 59; feared in 1787, 
120 

Democratic Republic, 56, 57, 58 

Despotism, as a form of govern- 
ment, 48 

Dickinson, John, in Convention 
of 1787, 206 

Dingley Law, 379 

Diplomacy, executive character 
of, 168 

District Attorney of the United 
States, 325 

District of Columbia, 362 

District plan of choosing elec- 
tors, 124; sustained by the 
courts, 124, 125, 126, 128; 
objection to, 129 

Divine Right and passive obedi- 
ence, 14, 19 sq.; 24 

Dorr Rebellion, 172 sq. 

Douglas, Stephen A., proposed 
constitutional amendment, 
154, 220 

Dred Scott Case, 324, 357; 
Curtis' s dissent in, 358 

Dunning' s resoluti on , 112 



Electoral College, 117; why 
adopted, 120; failure of, 121; 
reasons for failure, 122; pre- 
cedent for, 123; early action 
of, 123 ; district plan for 
choice of, 124; proposed 
changes in, 125. See Presi- 
dential Electors. 
Electoral Commission, 132, 277 
Eleventh Amendment, 154, 322 
Elliot' s' Debates, 233, 239 
Ellsworth in Convention of 

1787, 206, 330 
Enabling Act, 368, 370 
English Commercial Code. See 
Trade Laws. 



Equality, doctrine of, announced 
in Declaration of Indepen- 
dence, 11, 35 sq.; doctrine of, 
repudiated, 36, 37; opposes 
special privilege and a ruling 
class, 38, 39; John Morley on, 
40 ; social condition leading to 
the assertion of, 41, 42; Lin- 
coln on, 43 
Ex post facto law, 79, 85 
Executive, single or plural, 1 14 
Executive, under Parliamentary 

government, 96 
Executive departments, 189 
External taxation, 7 



Federal aspects of the United 

States Government, 67 sq. 
Federal Republic, 55, 60, 61, 63, 

64, 65, 66, 73 
Federal Government, distin- 
guished from National, 66 sq. 
Federal system, merits of , 60, 80 
Federalist, 56, 169, 201, 212 
Fessenden, Senator, on election 

of Senators, 215, 216 
Field, Justice, 325 
Fifteenth Amendment, 246 
Fifth Amendment, 79 
Filibustering, in the Senate, 223 ; 

in the House, 261 sq.; 277 
Finance Committee of Congress, 

287 sqq. See Committees. 
Follett, Miss M. P., on American 

Speaker, 271-279 
Foraker Act, 379, 384 
Ford, Paul L., Federalist, 201, 

219, 312 
Forney, John W., 252 
Foster on the Constitution, 211, 

225, 228, 232, 233, 234, 235, 

237, 240, 241 
"Four Years' Law," 185 
Fourteenth Amendment, 85, 

248, 351. 356> 357> 358, 359 
Franklin, Benjamin, proposes 

suspensive veto, 148; 201; 205 
Free Assembly, right of, 6 
Free Silver Bill, struggle over, in 

House, 258 sq.; 262 sq. 
French Alliance, 170 
Fugitive Slave Law, 321 
Fuller, Chief Justice, 125 



Index 



403 



Furber, Precedents Relating to 
the Senate, 214, 227 



Gallatin, Albert, on the House 
and the Treaty power, 159 
sqq.; 170 

Garfield, President, 229 

Garrison, W. P., on election of 
Senators, 215, 218 

George III.'s attempt to restore 
personal government, result 
of, 29, 97, 112, 148 

Gerrymander, 125, 250 

Gohier, Urbain, on evils of mili- 
tarism, 53-54 

Gordy, Political Parties, 383 

Government by the consent of 
the governed, 11, 17-33; Les- 
lie Stephen on, 20; the goal of 
civil order, 24; Lyman Ab- 
bott on, 25 ; Humboldt on, 26; 
opposed to the theory of ab- 
solutism, 26, 27; affirms the 
right to self-government of a 
capable body politic, 29, 30; 
Senator Hoar on, 30-31; 
principle of, pledged in Ter- 
ritorial Government, 31; op- 
poses government by force, 
32 ; taught by Thomas Hook- 
er, 32; 390 

Government for the benefit of 
the governed, 11; 16 

Government Bill in England, 
97-98; 265; in America, 266 

Grant, President, 115; 139, 156, 
165, 226, 309 

Greenback decisions, 334 

Guarantee Clause of the Con- 
stitution, 172 



H 



Habeas Corpus, 84, 177 sqq., 321, 

3 6 4 

Hamilton, on concurrent su- 
preme powers, 72; on im- 
plied powers, 75 sq., 135; 145, 
148; on abrogation of trea- 
ties, 171; on power of re- 
moval, 184 sqq.; 192; 214; 
228; 303 

Hamlin, Hannibal, 155 



Hanoverian kings, in 

Harlan, Justice, dissenting 
opinion in Insular Cases, 394 

Harrison, President, on District 
Plan of choosing Electors, 125; 
129, 157 

Hawaiian Islands, 362 

Hayes, President, 131; on war 
powers, 182; 309; 310 

Haynes, Popular Election of 
Senators, 219 

Hill, Senator, 230 

Hinsdale, B. A., American Gov- 
ernment, 154, 155, 325, 340 

Hoar, Senator, on consent of 
the governed, 30, 31 ; on sena- 
torial courtesy, 227; on Bel- 
knap Case, 234 

Hollingsworth vs. Virginia, 154 

House, Lolabel, on Twelfth 
Amendment, 119 

House of Representatives, na- 
tional character of, 67; par- 
ticipation in treaty-making, 
159 sqq.; constitution of, 246; 
organization of, 248; vacan- 
cies in, 251; sessions of, 251; 
officers of, 252; clerk, 252; 
267, 268; party caucus of, 
253; minority leader in, 253; 
exclusive rights and powers 
of, 256; divisions in, 257; 
rules and procedure, 257, 258; 
special order in, 258; Com- 
mittee on Rules, 258; legisla- 
tive day in, 261; filibustering 
in, 261 sq.; calendar of, 
261; cloture in, 262; pre- 
vious question in, 264; how 
a bill is passed in, 264; morn- 
ing hour in, 264; continuous 
sessions of, 265; Speaker 
Reed on, 265; Committee of 
the Whole, 265; quorum in, 
266 ; struggle in, over Speaker 
Reed's decision as to the 
quorum, 267 sqq.; commit- 
tees, 281 sqq.; control over 
committees, 283; action on 
committee reports, 283; lack 
of responsibility in, 296 sqq.; 
collisions with Senate, 300; 
power over the purse, 307; 
employees of, 313; references 
on, 315 



404 



Index 



Humboldt on self-government, 
26 

Humphreys, Judge, impeach- 
ment of, 238 

Hunter, R. M. T., Speaker, 249 



Impeachment, provisions of the 
Constitution on, 231; the 
Supreme Court and, 232; of 
Blount, 233, 237; of Belknap, 
235; of Pickering, 237; of 
Chase, 238; of Peck, 238; of 
Humphreys, 238; of Presi- 
dent Johnson, 239; scope of, 
235; 306 
Imperative Mandate, 348 
Implied powers, 75, 77, 86 
Income Tax Decisions, 334 
Indian Territory, 362, 371; 

tribal relations in, 371 
Initiative, 58 
Injunction in restraint of the 

Executive, 106 
Insular Cases, 88, 378 sqq.; 
minority view of, 393 sqq., 397 
Island Possessions, constitu- 
tional status of, 378 sqq.; 
status of inhabitants, 383 



J 



Jackson, President, on Execu- 
tive independence, 101; Bank 
veto, 101; on Worcester vs. 
Georgia, 105; 115; 129; 130; 
138; use of veto, 149, 152; 
removals, 185, 324 

James, E. J., Legal Tender 
Cases, 334 

Jay, John, on Law of Treaties, 
169,330 

Jay's Treaty, 159 sqq. 

Jefferson, on strict construction, 
74, 75; on the power of the 
Judiciary, 99; on indepen- 
dence of the Executive, 100, 
10 1 ; 115; on the Treaty 
power, 161 sq.; on abro- 
gation of treaties, 171; on 
suspending Habeas Corpus, 
180; 190; 192; 302; 313; 325; 
327 ; opinion of Marshall, 328, 
383 



Jefferson's Summary View of 
the Rights of the Colonies, 2 

Jenks, Edward, History of Pol- 
itics quoted, 61 

Jenks, G. A., on Belknap Case, 

233 

Johnson, Dr., in Convention of 
1787, 207 

Johnson, President Andrew, 106; 
107; use of veto, 150; and 
Tenure of Office Act, 187 ; 189 ; 
impeachment of , 197, 239, 309 

Joint Resolution, 154, 155 

Judiciary of the States, 354 sqq.; 
tenure of, 354; salaries of, 
354; popular election of, 355; 
scope of decisions, 355 

Judiciary of United States, 
where vested, 317; tenure of 
judges, 317; under the Con- 
federation, 317; increase of 
power to, 330; may not sub- 
ordinate the Legislature, 336. 
See Supreme Court; Judiciary; 
Justices; Courts. 

Judiciary Act of 1789, 318 

Jury, right of trial by, 5 ; denied 
by Admiralty Courts in en- 
forcement of Stamp Act, 5; 
guaranteed in Constitution, 

84. 392 
Justices of United States Courts, 
creation of, 318; number of, 
318; how removable ,318 

K 

Kasson, reciprocity treaties of, 

168 
Kentucky Resolutions, 75, 327 



Landon, Constitutional History, 
181 

League. See Confederation. 

Lecky, W. E. H., cites causes of 
American Revolution, 1 

Legal Tender Act, 338 

Legal Tender Cases, 88 

Legislative Day, 262 

Lieber, Civil Liberty, 214 

Limitations on power of State 
and Nation. See Constitu- 
tional limitations. 



Index 



405 



Lincoln, on Executive Indepen- 
dence, 103; on Reconstruc- 
tion, 146, 154; 176; 220; 228; 
333 > construction of war 
powers, 340 

Lindsay, Senator, on instruc- 
tions to Senators, 240 

Livingston, Edward, 159, 161 

Lobbying, 314, 315 

Local Self-Government, right of 
Colonies to, asserted, 3, 5 

Locke and Right of Revolution, 

15 
Lockwood, H. C, Abolition of 

the Presidency, 152, 309 
Lodge, Henry Cabot, on "The 
Treaty-Making Power," 167, 

172 
"Log-rolling," 291 
Lords, English House of, 196 
Louisiana, admission of, 382; 

territorial government of, 383 
Louisiana Purchase, 88; Treaty 

of, 162; 381 
Luther us. Borden, 172, 174, 175 



M 



McConachie, committee system, 

281 sqq. 
McCulloch vs. Maryland, 101 
Maccunn, Ethics of Citizenship, 

61 
McKee, congressional practice, 

McKinley, President, and Span- 
ish Treaty, 157; 176 

Maclay's Journal, 211 

McPherson, History of the Rebel- 
lion, 180 

Madison, definition of Republic, 
54, 56; on democracy, 59; on 
character of the Federal Gov- 
ernment, 66; in case of Mar- 
bury, 100; on power of re- 
moval, 184 sqq.; 212; 213; 
228; 383 

Magna Charta, 8; 27, 50, 328 

Mantle, Lee, case of, 198 

Marbury vs. Madison, 99, 107, 

33°> 33* 

Marshal, Federal, 324 

Marshall, Chief Justice, on pow- 
ers of National Government, 
77 ; on restrictions of the Con- 



stitution, 78-79; in Barron 
vs. Baltimore, 78-79; in Mar- 
bury vs. Madison, 100; in 
Worcester vs. Georgia, 105; 
on suspending Habeas Corpus, 
180; secures power to Judi- 
ciary, 330; nationalizing de- 
cisions of, 333; principles of 
construction, 340; in Chero- 
kee Nation vs. Georgia, 372 
Mason's Veto Power, 147, 153, 

Merryman Case, 179 

Mexican War, 158 

Michigan plan of choosing elec- 
tors. See District plan. 

" Midnight Judges," 100, 333 

Militarism, 52, 53 

Military Republic, 55 

Milton, defence of the English 
people, 27 sq. 

Ministerial and executive duties 
compared, 100, 107, 108 

Ministerial government. See 
Cabinet and Parliamentary 
Government. 

Mississippi vs. Johnson, 106, 107 

Mobocracy, 51 

Monarchy, as a form of govern- 
ment, 47; absolute, 48, 49 

Money bills, origin of, in House, 
207; English and American 
practice on, 288 

Monroe- Pinkney Treaty, 190 

Montesquieu, 113 

Morton, Senator, on Disputed 
Elections Act, 135 

Mutiny Act of 1765, 5 



N 



Nation in convention, 90 

National aspects of the United 
States Government, 67 sq., 73 

National Government, extent of 
its powers, 86, 87, 88; char- 
acter of, defined, 93; right to 
interfere in States, 174. See 
Constitutional limitations; 
National Powers. 

National Powers, 81; delegated, 
82; prohibitions on, 84, 85, 
86; judge of limits, 327 

Nationalists in Federal Conven- 
tion of 1787, 65 



406 



Index 



Neagle Case, 143, 325 

Negative on State laws, 326. 
See Veto. 

Nelson, Henry Loomis, A Mis- 
take of the Fathers, 166, 167 

Nevada, 250 

New Jersey, election contest 
(1839), 248 

New Mexico, 362 

New York Assembly dissolved, 5 

Niles's Register, 153, 241 



Ochlocracy. See Mobocracy. 
Oklahoma, 362 
Oligarchic Republic, 55 
Oligarchy, 49, 50 
Olney-Pauncefote Treaty, 166 
Ord, Gen. A. O. C, 106 
Ordinance of 1787, 363, 392 



Parliament, powers sovereign 
and constituent, 89; 308 

Parliamentary Government, 95 

Parliamentary Taxation of Am- 
erica, 1, 3 

Passive Obedience and Divine 
Right, 14 

Paterson of New Jersey, on 
basis of Senate, 203 

Patronage, Executive, 304; 
abuses of, 314. See Presi- 
dent; Congress. 

Peck, Judge, impeachment of, 
238 

Peel, Sir Robert, 271 

Pepke Case, 379 

Petition of Right, 8 

Petition, right of, 6 

Philippines, 362, 376 

Pickering, Judge, impeachment 
of, 237 

Pinkney, 370 

Piatt, Senator, 229 

Plutocracy, 49 

" Pocket Veto," 146 

Polk, President, and the Treaty 
power, 156-158 

Porto Rico, 362, 374 

Presidency, federal and na- 
tional aspects of, 67 sq. 



President, unwritten law on, 92; 
lack of, under the Confedera- 
tion, 94; created by the Con- 
stitution of 1787, 94-95; in- 
dependent of Congress, 95, 
and of the Judiciary, 99 
sq.; independence of, sus- 
tained by Jefferson, 99, 100, 
by Jackson, 10 1, by Buchan- 
an, 102, by Sumner and Lin- 
coln, 103; dependent on Ju- 
dicial construction of the 
law, in view of Webster, 103, 
104; Cooley on independence 
of, 104, 108; bound by the 
law, 105; may not be re- 
strained by injunction, 106; 
ministerial and executive 
duty of, compared, 107, 108; 
compared with English Pre- 
mier, 109 ; danger from his in- 
dependence, 109; length of 
term, 115, 116; ineligible to 
third term by unwritten law, 
115; mode of election, 115 
sq.; patronage of, 116; time 
of election, 117; eventual 
election of, 118; defects in 
electing, 127; election of, by 
minority vote, 129-130; by 
House of Representatives, 
130; contested election of, 131; 
qualifications of, 135; salary 
of, 136; exempt from legal 
process, 136; vacancy in 
office of, 140; powers and 
duties classified, 142 sq.; 
executive functions of, 142; 
diplomatic functions of, 143; 
advisory functions of, 143; 
legislative functions of, 143; 
judicial power of , 144; veto of , 
144 sqq.; pocket veto, 146; 
in foreign relations, 156 sqq.; 
independence in treaty-mak- 
ing, 165; the guarantee of re- 
publican government and, 
172 sq.; right to interfere in 
State disorders, 175; war 
power of, 143; 176 sqq.; pow- 
er to suspend writ of habeas 
corpus, 179 sq.; appoint- 
ing power of, 182; power 
of removal, 183; growing 
powers of, 187; Cabinet, 189 



Index 



407 



President — Continued 

sq.; references on, 194, 195; 
relations to Congress, 301; 
how he may influence Con- 
gress, 302 sqq.; message of, 
302 ; executive patronage, 
304; and Legislative "Rider," 
310 

Presidential Electors, must vote 
for party candidates, 92; 
character and functions of, 
121; method of choosing, 124; 
qualifications of, 125. See 
Electoral College. 

Presidential Government com- 
pared with Parliamentary, 95 

Presidential Succession Act, 119, 
141 sq. 

Pri gg vs. Pennsylvania, 323 

Principles of the Republic, Ch.I. ; 
the constitutional guarantees 
the outgrowth of, 43 sq.; 
references on, 45, 46 

Proportional Representation, 
126, 128 

Public office a public trust, 17 



Quartering policy of Great Brit- 
ain, 1,2,5 

Quay case, 198 

Quorum, struggle over, in the 
House, 266 sqq.; definition 
of, 266, 268; Speaker Reed's 
decision on, 268 sqq.; old 
rule of, 269 



Randall, Speaker, 133; resists 
obstruction, 277 

Randolph, C. ~F.,Law and Policy 
of Annexation, 89 

Randolph, Edmund, 114 

"Randolph Plan," 94 

Reconstruction Acts, test of, 
105-106 

Redistribution of seats, Act for, 
250 

Reed, Speaker, 255, 265; quo- 
rum decision of, 268 sqq.; 296 

Referendum, 58, in, 347, 348 

Reichstag, 250 

Removal, power of, 183 sqq. 



Representative Democracy, 57, 

„ 58 

Representatives in Congress,who 
may vote for, 246; qualifica- 
tions of, 247; apportionment 
of, 248; ratio to population, 
250; at large, 250; seating 
of, 254; salary of, 254; tenure 
of, 254; rotation in, 255; ex- 
empt from arrest, 313 

Republic, kinds of, 55, 56; 
definition of, 56, 59; cen- 
tralized, 60; Federal, 60 

Republican Government, de- 
fined, 54; Madison on, 54; 
constitutional guarantee of, 
54, 56, 172 sq.; definition of, 

5 6 ' 57 
Republican Party, t,^^ 
Requisitions, system of, 7 
Resulting powers, 76, 86 
Revolution of 1688, 8; Whig 
theory of, 20; rights vindi- 
cated by, 20, 21; Burke on, 21 
Revolution, right of, n; Locke 
on, 15; affirmed in Declara- 
tion of Independence, 7,3, 34; 
conditions justifying, 34-35; 
Bentham on, 35 
"Riders," Legislative, 301, 307, 

308, 310 
Rights of Colonies asserted, to 
guarantees of the British Con- 
stitution, 3 
Rights of Men, n; 14 
Roberts, Brigham H., case of, 

247 
Roosevelt, Theodore, American 
Ideals, 139; on the Vice- 
Presidency, 139, 140 
Root, Secretary Elihu, 392 
Rules, House Committee on, 
258 sq.; discussion of, and 
references on, 260, 261, 262. 
See Speaker and House of 
Representatives 



Samoan Islands, 362, 374 
San Domingo Treaty, 165 
Sayers, Representative, on ex- 
travagant appropriations, 292 
Schouler, James, History of the 
United States, 160 



4o8 



Index 



Schurman, President, 376 

Self- Government. See Govern- 
ment by consent. 

Senate, French, 196 

Senate, United States, federal 
character of, 67, 208 ; as part of 
the treaty-making power, 456 
sqq.; composition of, 196; 
president of, 196; perman- 
ence of, 197; vacancies in, 
198; origin of, 199; equal 
vs. proportional vote in, 
202 sqq., 209; undemocratic, 
208; advantages of equal 
representation in, 210; legis- 
lative function of, 210; ex- 
ecutive functions of, 211; 
executive session of, 211; 
judicial functions of, 212; as 
an executive council, 213; 
purposes in creating, 214; and 
unwritten constitution, 220; 
candidates' methods, 222; 
cloture in, 223; filibustering 
in, 223; rules of, 225; cour- 
tesy of, 225 sq.; dignity of, 
230 ; impeachment before, 
231; permanence of , 242; sta- 
bility of, 242; references on, 
244 
Senators, qualifications of, 196; 
classes of, 197; method of 
electing, 214 sqq.; law of 
1866, 214; references on 
method of electing, 219, 244; 
term of, 239; instruction of, 

239 

Separation of governmental 
powers, 108 sq.; why estab- 
lished, in sqq. 

Septennial Act, 89 

Seven Years' War, result of, in 
America, 1 

Seward, Secretary, 181, 309 

Sherman, Roger, idea of Federal 
Executive, 94, 98 

Sidgwick, Elements of Politics, 50 

Sidney, Algernon, opposes abso- 
lutism, 15 

Slaughterhouse Cases, 359, 360 

Social compact, theory of, 19 sq. 

Sovereignty, in Federal govern- 
ment, 63, 64; 76; distin- 
guished from supremacy, 71; 
nature of, 72 



Spectator, London, 98; on the 
American President, 109 sq. 

Speaker of House of Represen- 
tatives, how chosen, 253; 
chairman Committee on 
Rules, 258 sq. ; vote of, 261; 
importance of, 270; of English 
Commons, 270 sq.; English 
and American compared, 271 
sq.; sources of his power, 271 
sqq.; power of appointment, 
272; power of recognition, 
273; unwritten law on, 274; 
as a party leader, 275; one- 
man power of, 276; limits to 
power of, 276; early Speakers, 
277; Clay, 277; Winthrop, 
278; Blaine, 278; Giddings 
on, 278 

Spirit of Laws, The, 113 

"Spoils System," 183 

Staatenbund , 63 

Stamp Act of 1765, 3; enforced 
by Admiralty Courts, 5; a 
direct tax without representa- 
tion, 7 ; Mr. Lecky on, 8 sq. 

Standing Army, colonial oppo- 
sition to, 2 

Stan wood, History of the Presi- 
dency, 135 

State constitutions, influence of, 
on United States Constitu- 
tion, 114; origin of, 343; how 
made, 346 ; method of amend- 
ing, 347 

State Courts, judge of national 
law, 336 

State powers, 81; original, 82, 
86; prohibitions on, 85 

States, government of, 342 sqq.; 
relative importance of, 342; 
functions of, 342 sqq.; limita- 
tions on, 344; governmental 
departments of, 345 ; original 
powers of, 346; legislatures 
of, 348; Senators and Repre- 
sentatives of, 348 sq.; elec- 
toral districts of, 349; execu- 
tives, 352; Governors' powers 
and duties, 352 sq.; Lieuten- 
ant-governors, 353; judiciary, 
354; imposing conditions on, 
369; violation of terms of ad- 
mission, 370 

States' Rights, in domestic con- 



Index 



409 



States' Rights — Continued 
cerns, 5; controversy on, 73; 
denned, 345 

States' Rights School, 333 

"Steering Committee," 298 

Stephen, Leslie, History of Eng- 
lish Thought, 20 

Stevens, Sources of the Constitu- 
tion, 147, 181 sq., 191 

Stewart, A. T., 226 

Stockton Case, 215 sq. 

Strict construction, 74 sq. 

Suffrage, not an inherent right, 
22 sq.; regulated by State law, 
350; tests for, 350; "Grand- 
father" clause, 350; and 
Fourteenth Amendment, 351; 
woman's, 351 

Sulu Islands, 375 

Sumner, Charles, on Executive 
independence, 102 sq.; on 
Foreign Affairs Committee, 
157, 165; 228; 333 

Supreme Court, in Barron vs. 
Baltimore, 79 ; in Marbury vs. 
Madison, 99; in McCulloch 
vs. Maryland, 100; decision 
binding on the Executive, 103 
sq.; on the quorum in the 
House, 269; 306 sq.; size of, 
318; sessions of, 319; and 
politics, 332; political oppo- 
sition to, 333 ; and Greenback 
decisions, 334; and Income 
Tax decisions, 334; weak 
point in constitution of, 335; 
how cases arise in, 337 ; refer- 
ences on, 341; on citizenship, 
359; in Slaughterhouse cases, 
360; in Insular cases, 378 sqq., 
384 sqq. 

Suspension of Colonial Legisla- 
tures, 5 

"Sweeping Clause" of Constitu- 
tion, 74 



Taft, William H., 376 

Taney, Chief -Justice, on Merry- 
man Case, 179, 357, 358 

Tariff of Abominations, 240 

Taxation, without representa- 
tion, 7; the old constitu- 



tional system of , 7 ; American 
contention confirmed by Eng- 
lish precedents, 8-9; Con- 
tinental Congress on, 9; 
American maxim on, deduced 
from experience, 10 

Tenth Amendment, 74 

Tenure of Office Act, 106, 187; 
unconstitutionality of, 188 

Territories, delegates in Con- 
gress, 251; organized, 362; 
Organizing Act for, 362; an- 
ticipate statehood, 364; gov- 
ernment of, 365; Executives 
of, 365; legislatures of, 366; 
judiciary of, 367 ; how ad- 
mitted as States, 368; taxa- 
tion in, 371; unorganized, 
371; foreign and domestic, 
378; references, 397 

Texas vs. White, 73 

Thayer's Cases, 180 

Theocracy, 51 

"Third House," 314, 315 

Thirteenth Amendment, 154, 
368 

Three-fifths compromise, 205 

Tiedemann, Unwritten Constitu- 
tion, 87; on distribution of 
powers, 88 

Tilden, S. J., 131, 133, 135 

Trade Laws of Britain, as a 
cause of the American Revo- 
lution, 1, 2; enacted for com- 
mercial, not for revenue pur- 
poses, 7 

Transportation Act, 6; Burke 
on, 6 

Treasury, Secretary of, and 
House Committees, 288, 
289 

Treaty Law, scope of, 164, 169; 
abrogation of, 170, 171. See 
Treaty-making power. 

Treaty-making power, 156 sqq.; 
need of unity and harmony in, 
158; participation of House 
in, 159; paralysis of, 167; 
Senator Lodge on, 167 

Tully, Speaker, 271 

Twelfth Amendment, 117, 119 

Tyler, President, Bank veto, 102 ; 
138; use of veto, 152; 240 

Tyranny. See Despotism. 

Tyrant, 48 



4io 



Index 



Unconstitutional Act, status of, 
325 

Unwritten Constitution, 86, 87, 
88, 91, 92; laws of, in Am- 
erica, 92-93; 122; 274; 391 

Utah, admission of, 370 



Veto, Executive, 144 sqq.; in 
the Colonies, 147; Royal use 
of, 147, 148; and the Judi- 
ciary, 148; how used by the 
Presidents, 149; written con- 
stitutions and, 150; Bryce on, 
150; decline of, in England, 
151; Whig opposition to, 151; 
Clay opposes growth of, 151, 
152; proposals to limit, 153; 
constitutional amendment 
and, 154; may the President 
recall? 156; Senate and, 213; 
303 ; of a section of a bill, 311 

Vice-President, final choice of, 
118; functions of, 137; suc- 
ceeding to the presidency, 138; 
141, 271 

Von Hoist, Constitutional Law, 
169, 370 

W 

Wade, Senator, 146; on im- 
peachment of Johnson, 197; 

3°9 
Wade- Davis plan of Recon- 
struction, 146 



Walpole, in, 112 

War for the Union, national 
character of, 69 

War Power of the President, 
i43» 34o 

Washburn, C. C, on Alaskan 
Treaty, 162 

Washington, President, use of 
veto, 149; in treaty-making, 
156, on Jay's Treaty, 159, 
161 ; 192; 228 

Ways and Means Committee, 
289. See Committees. 

Webster, on concurrent supreme 
powers, 72; on Executive in- 
dependence, 103, 104, 105, 
108; 185; 187; in Tyler's Cab- 
inet, 193; 201 

West, H. L., on growing powers 
of President, 187 

Wharton, State Trials, 234 

Whigs, 138; opposition to the 
veto, 153 

Whip, in English Commons, 271, 
299 

White, Justice, 379; in Insular 
Cases, 389 

White, William Allen, on Presi- 
dent Cleveland, 187 

Willoughby, W. W., Theory of 
the State, 63, 65, 66 

Wilson, James, 114, 120, 123, 
135, 148; on basis of the Sen- 
ate, 204 

Wilson, Woodrow, on Congres- 
sional Committees, 296, 297 

Winthrop, Speaker, 278 

Worcester vs. Georgia, 105 

Written Constitution defined, 
90, 91, 92 



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